26 May 1950
Supreme Court


Case number: Appeal (civil) 34 of 1950






DATE OF JUDGMENT: 26/05/1950


CITATION:  1950 AIR  188            1950 SCR  459  CITATOR INFO :  F          1953 SC 325  (13)  F          1954 SC 520  (4)  R          1955 SC 170  (20)  F          1956 SC  66  (16)  R          1956 SC 153  (6)  R          1956 SC 231  (22,23)  D          1956 SC 319  (13)  R          1959 SC1035  (14)  R          1961 SC1669  (13)  RF         1962 SC 486  (15)  R          1962 SC1621  (60)  F          1963 SC 630  (6)  RF         1963 SC 677  (18,20)  R          1963 SC 874  (8,9,17)  R          1965 SC1595  (18,19,40,41,42)  R          1967 SC1494  (13)  RF         1972 SC1967  (5)  RF         1977 SC2155  (23)  R          1979 SC1652  (29)  E          1980 SC 856  (21)  C          1980 SC 962  (77)  R          1982 SC  78  (8)  RF         1992 SC2219  (53,135)

ACT:     Constitution  of India, Art. 136--Supreme  Court--Appel- late  Jurisdiction--Award  of  Industrial  Tribunal--Whether appealable-- 460 Applicationt for special leave--Maintainability -- Nature of functions  of Industrial Tribunal-Industrial  Disputes  Act, 1947, es. 8, Case heard by Bench of three members.

HEADNOTE:  Held per KANIA (C.J. FAZL ALl,  and  MAHAJAN JJ.  (MUKH- ERJEA  and PATANJALI SASTRI JJ. dissenting).--The  functions and  duties  of the Industrial  Tribunal  constituted  under Industrial Disputes Act, 1947, are very much like those of a body  discharging  judicial functions although it is  not  a



Court,  and under Art. 136 of the Constitution of India  the Supreme  Court jurisdiction to entertain an application  for leave  to  appeal  from    decision of  the  Tribunal,  even though it will be very to entertain such an application.     Per      MUKERJEA       J.     (PATANJALI     SASTRI    J. concurring).--An  Industrial Tribunal functioning under  the Industrial  Disputes  Act is not a judicial  tribunal.   The nature of the determinations made     and the materials  and considerations on which it has to decide a dispute are  also such  that the powers of an appellate court cannot be  exer- cised  fully  and effectively in respect of  them  and  such determinations are therefore outside the purview of Art. 136 of  the  Constitution.   Even assuming that  the  Court  had jurisdiction             appeal, the present case was not  a fit one for entertaining an appeal from the determination of the Tribunal.     [On  the merits KANlA C..J., FAZL ALl, PATANJALI  SASTRI and MUKHERJEA, JJ. were of opinion that there was no  ground for  admitting the appeal.  MAHAJAN J. was of  opinion  that the award was bad and must be set aside.]

JUDGMENT: APPELLATE  JURISDICTION:  Civil  Appeal  No. XXXIV of 1950.     Appeal  by special leave from an Award of the  All-India Industrial Tribunal (Bank Disputes) Bombay, dated 1st  Janu- ary,  1950.  The facts of the case are set out in the  judg- ment.     Dr.  Bakshi  Tek Chand (Veda Vyas and S.K.  Kapur,  with him) for the appellant. B. Sen for the respondents.     Alladi Krishnaswami Aiyar (Jindra Lal, with him) for the Union of India.     1950.  May 26.  The Court delivered judgment as  follows :--     KANIA  C.J--  I  have read  the  judgments  prepared  by Messrs.  Fazl Ali, Mahajan and Mukherjea JJ. 461 in this case.  As the views in   those judgments in  respect of the nature of the duties and functions of the  Industrial Tribunal  do not  show agreement I consider it necessary  to add a few words of my own.     In my opinion, the functions and  duties  of the  Indus- trial Tribunal are very much like those of a body  discharg- ing  judicial  functions, although it is not a  Court.   The rules  framed by the Tribunal require evidence to  be  taken and  witnesses to be examined, cross-examined  and  re-exam- ined.   The Act constituting the Tribunal imposes  penalties for  incorrect statements made before the  Tribunal.   While the  powers     of the Industrial Tribunal in some  respects are  different from those of an ordinary civil Court and  it has  jurisdiction and powers to give reliefs which  a  civil Court  administering  the  law of the  land  (for  instance, ’ordering  the reinstatement of a workman) does not  possess in the discharge of its duties it is essentially working  as a judicial body.  The fact that its determination has to  be followed by an order of the Government which makes the award binding,  or that in cases where Government is a  party  the legislature  is permitted  to revise the decision,  or  that the Government is empowered to fix the period. of the opera- tion of the award do not, to my mind, alter  the nature  and character of the functions of the Tribunal.  Having  consid- ered all the provisions of the Act it seems to me clear that



the  Tribunal is discharging functions very near those of  a Court, although it is not a Court in the technical sense  of the word.    The next question is whether under article 136 the  Court has  jurisdiction to entertain an application for  leave  to appeal  against the decision of such a body. It is not  dis- puted that the Court has power to issue writs of  certiorari and  prohibition  in respect of the work of  the   Tribunal. The   only  question is  whether there is a right of  appeal also.   In  my opinion the wording of article  136  is  wide enough  to  give jurisdiction to the Court to  entertain  an application for leave to appeal, although it is obvious that having  regard to the nature of the functions of the  Tribu- nal, this Court will be very reluctant to entertain such  an application. 462     As regards the merits, I do not think this is a case  in which I would admit the appeal.  The aggrieved   parties may apply for redress by adopting other appropriate proceedings. The appeal therefore should be dismissed with costs.   FAZL ALl J.--The important question to be decided in  this case  is  whether  the present appeal lies at  all  to  this Court.  The question is not free from difficulty, but on the whole I am inclined to think that ’the appeal does lie.   It is  fully  recognized  that the scope  article  136  of  the Constitution  is  very  wide, but the  significance  of  the language  used  in the section can be  appreciated  only  by comparing  it with the articles which precede  it.   Article 132  deals  with the appellate jurisdiction of  the  Supreme Court in cases involving a substantial question of law as to the  interpretation of the Constitution, and the words  used in  that  article  are: "appeal......   from  any  judgment, decree  or finalorder."  Article 133 deals with  appeals  in civil matters and the same words are used here also.   Arti- cle  134  deals with appeals in criminal  matters,  and  the words  used  in it are: "appeal......   from  any  judgment, final order or sentence."  In article 136, the words  "judg- ment"  and "decree," which are used in articles 132 and  133 are  retained.  Similarly, the words "judgment"  and   "sen- tence"  occurring  in  article 134 are also  retained.   But the  expression "final order" becomes "order," and,  instead of  the High Court, reference is made to "any court."   Cer- tain other words are also used in the article which seem  to me  to have a special significance, these being  "determina- tion," "cause or matter" and "tribunal."  It is obvious that these  words greatly widen the scope of article  136.   They show  that an appeal will lie also from a  determination  or order of "any tribunal" in any cause or matter.     Can  we  then say that an Industrial Tribunal  does  not fall  within the scope of article 136 ?  If we go by a  mere label, the answer must be in the affirmative. But we have to look  further  and see what are the main  functions  of  the Tribunal  and how it proceeds to discharge those  functions. This is necessary because 463 I  take it to be implied that before an appeal can.  lie  to this  Court  from a tribunal it must perform  some  kind  of judicial function and partake to some extent of the  charac- ter of a Court.     Now  there can be no doubt that the Industrial  Tribunal has, to use a well-known expression, "all the trappings of a Court"  and performs functions which cannot but be  regarded as  judicial.  This is evident from the rules by  which  the proceedings  before the Tribunal are regulated.  It  appears that  the proceeding before it commences on  an  application



which in many respects is in the nature of a plaint.  It has the  same  powers as are vested in a civil Court  under  the Code  of Civil Procedure when trying a suit, in  respect  of discovery,  inspection, granting adjournment,  reception  of evidence  taken  on  affidavit,  enforcing  the   attendance witnesses,  compelling the production of documents,  issuing commissions,  etc.  It is to be deemed to be a  civil  Court within  the meaning of sections 480 and 482 of the  Criminal Procedure Code, 1898.  It may admit and call for evidence at any stage of the proceeding and has the power to  administer oaths.   The parties appearing before it have the  right  of examination,  cross-examination  and re-examination  and  of addressing  it after all evidence has been called.  A  party may  also be represented by a. legal practitioner  with  its permission.     The  matter does not rest there.  The main  function  of this Tribunal is to adjudicate on industrial disputes  which implies  that  there must be two or more parties  before  it with conflicting cases, and that it has also to arrive at  a conclusion  as  to how the dispute is to  be  ended.   Prima facie,  therefore, a Tribunal like this cannot  be  excluded from the scope of article 136, but before any final  conclu- sion  can  be expressed on the subject  certain  contentions which  have  been put forward on behalf of  the  respondents have to be disposed of.     The  first  contention is that the  Industrial  Tribunal cannot  be  said  to perform a  judicial  or  quasi-judicial function.  since  it  is not required to be  guided  by  any recognized substantive law in deciding disputes 464 which  come  before  it.  On the  other  hand,  in  deciding industrial disputes, it has to override contracts and create rights  which  are opposed to contractual rights.  In  these circumstances,   it  is said that the very  questions  which arose  before the Privy Council in Moses  v.Parker  Ex-parte Mose (1) arise in this case, these questions being : (1)  How  can the propriety of the  Tribunal’s  decision  be tested on appeal, and      (2) What are the canons by which the appellate Court is to be guided in deciding the appeal ?  Their Lordships of the Privy Council undoubtedly felt  that these were serious questions, but they had no hesitation  in saying  that  "if  it were clear that appeals  ought  to  be allowed. such difficulties would doubtless be met  somehow." This, in my opinion, is a sufficient answer to the difficul- ty raised. The Tribunal has to adjudicate in accordance with the  provisions  of  the Industrial Disputes  Act.   It  may sometimes  override contracts, but so can a Court which  has to  administer law according to the Bengal or  Bihar  Money- lenders Act, Encumbered Estates Act and other similar  Acts. The  Tribunal has to observe the provisions of  the  special law  which it has to administer though that law may be  dif- ferent  from  the  law which an ordinary  Court  of  justice administers.   The appellate Court, therefore, can at  least see that the rules according to which it has to act and  the provisions  which are binding upon it are observed, and  its powers  are  not.exercised  in an  arbitrary  or  capricious manner.      The second contention, which is a more serious one,  is that  the adjudication of the Tribunal has not all  the  at- tributes  of a judicial decision, because  the  adjudication cannot  bind the parties until it is declared to be  binding by  the Government under section 15 of the  Industrial  Dis- putes  Act.  It is said that the adjudication is  really  in the  nature  of an advice or report which is  not  effective



until made so by the Government.  It appears that  a similar objection  was raised in Rex v. Electricity  Commissioner’s, London Electricily’ (1) [1896] A.C. 245. Joint  Committee Co. (1920) Ex-Parte (1) for the purpose  of deciding  whether a writ of certiorari should be  Issued  in the circumstances of the case but was dis. posed of in these words :--         "It is necessary, however, to deal with what i think was the main objection of the Attorney-General. In this case he said the Commissioners come to no decision at all.   They act merely as advisers.  They recommend an order embodying a scheme to the Minister of Transport, who may confirm it with or  without nodifications. Similarly the Minister of  Trans- port  comes  to no decision.  He submits the  order  to  the Houses  of  Parliament, who may approve it with  or  without modifications.  The  Houses of Parliament may  put  anything into the order they please, whether consistent with the  Act of  1919,  or  not.  Until they have  approved,  nothing  is decided,  and  in truth the whole procedure,  draft  scheme, inquiry,  order, confirmation, approval, is only part  of  a process  by which Parliament is expressing its will, and  at no  stage  is subject to any control by the Courts.   It  is unnecessary  to emphasize the constitutional  importance  of this  contention.........  In the provision that  the  final decision  of the Commissioners is not to be operative  until it has been approved by the two Houses of Parliament I  find nothing inconsistent with the view that in arriving at  that decision the Commissioners themselves are to act  judicially and  within the limits prescribed by Act of Parliament,  and that the Courts have power to keep them within those limits. It is to be noted that it is the order of the  Commissioners that eventually takes effect; neither the Minister of Trans- port who confirms, nor the Houses of Parliament who approve, can under the statute make an order which in respect. of the matters in question has any operation.  I know of no author- ity  which compels me to hold that a proceeding cannot be  a judicial  proceeding  subject to prohibition  or  certiorari because  it  is subject to confirmation  or  approval,  even where the approval has to be that of  the Houses of  Parlia- ment.  The authorities are to the   contrary.’ ’   (1) [1924] 1 K.B. 171. 466 It is well known that a writ of certiorari can issue only against an order of a judicial or quasi-judicial tribu- nal and if it is permissible for the High Court to. issue  a writ  of  certiorari against an Industrial  Tribunal,  which fact was not seriously disputed before us, I find it  diffi- cult to hold that the tribunal does not come with-    in  the  purview of article 136. If a  subordinate  Court acts in excess of its jurisdiction or assumes a jurisdiction which  it does not possess, the appellate Court  can  always interfere  and do what is contemplated to be done by a  writ of certiorari. It  is to be noted that under section 15 of  the  Industrial Disputes  Act, 1947, in cases where the appropriate  Govern- ment is not a party to the dispute, all that the  Government has  to  do  on receiving the award of the  Tribunal  is  to declare it to be binding and to state from what date and for what period it will be binding.  Section 15.(2) is mandatory and it provides:        "On receipt of such award, the appropriate Government shall   by  order  in  writing  declare  the  award  to   be binding.......  "        Thus  the Government cannot alter, or cancel, or  add



to  the award, but the award must be declared to be  binding as  it is. In substance, therefore, the adjudication of  the Tribunal  amounts  to a final determination of  the  dispute which binds the parties as well as the Government.        Our  attention was however  drawn to the  proviso  to section 15 (2), which runs as follows:--        "Provided that where the appropriate Government is a. party to the dispute and in its opinion it would be  inexpe- dient  on public grounds to give effect to the whole or  any part of the award, it shall on the first available  opportu- nity  lay the award together with the statement of its  rea- sons  for not making a declaration as aforesaid  before  the Legislative Assembly of the Province, or where the appropri- ate Government is the Central Government, before the Central Legislative Assembly, and shall, as soon as may be, cause to be moved therein a resolution for the consideration of the 467 award, and the Legislative Assembly may, by its  resolution, confirm, modify, or reject the award."     This proviso was relied upon by the respondents to  show that the right to appeal from the award could not have  been contemplated  in any case.  But the Act itself makes a  dis- tinction  between cases in which the Government is  a  party and  those  in which the Government is not  a  party.    The proviso  relates  to a very special type of case and  as  at present  advised I do not wish to express any opinion as  to whether an appeal lies to this Court or not in such a  case, but,  in my judgment, where the Government has only  to  de- clare the award to be binding, an appeal shall lie.     It is necessary here to say a few words as to the  scope of  the appeal. As was pointed out by this Court  in  Pritam Singh  v. The State(1), the power under article 136  of  the Constitution  being a special power is to be exercised  only in  special  cases.  The rule so laid down is bound  to  re- strict the scope of the appeal in practice in almost all the cases  which  fall under article 136.  But in some  cases  a limitation will be imposed on the scope of the appeal by the very  nature of the case and of the tribunal from  which  an appeal is sought to be brought, and a case under the  Indus- trial Disputes Act seems to be an example of such a case.     Dealing  now  with the merits of the appeal,  I  am  not prepared to hold that this is a proper case for interference with  the  adjudication of the Tribunal. The power  of  this Court  was invoked by the appellants on four grounds.  These grounds have been elaborately examined by Mahajan J. and two of  them  have been pronounced to be wholly  inadequate  for justifying  our interference. My view with regard  to  these two  grounds is identical with that of Mahajan J. and  I  do not wish to add to what he has already said on the  subject. The  remaining two grounds also are, in my  opinion,  wholly insufficient  to justify the exercise of our  special  power under  article 136.  One of these grounds is that the  award of  the Tribunal is based on no evidence whatsoever.   I  do not, however, find that this ground  (1) [1950] S.C.R. 453.  60 468 was urged in this form in the application for special  leave to  appeal to this Court. All that was intended to be  urged was  that the appellants wanted to adduce evidence but  were not  allowed  to do so.  From the decision of  the  Tribunal however,  it  appears that the evidence that  was  shut  out related  to one isolated point only and the  Tribunal  might well  have  been justified in not allowing  evidence  to  be admitted  on  a  point which in its opinion  had  no  direct



bearing  on  the issue before them.  After hearing  the  re- spondents  on  this particular point, I am not  disposed  to hold that the Tribunal has committed such an error as  would justify the interference of this Court.     The last ground urged is that the award has been  signed by  only  two members of the Tribunal though  it  originally consisted of three persons and though the entire hearing  of the  dispute had taken place before all the  three  persons. This  objection  does not appear to me to be  fatal  to  the jurisdiction of the Tribunal, because under section 8 of the Act it is not obligatory on the Government to appoint a  new member to fill a vacancy if one of the members ceases to  be available  at  any time during the proceedings.  Under  that section, if the Chairman ceases to be available, the Govern- ment must appoint his successor, whereas if a member  ceases to  be available the Government may or may not  appoint  any one to fill his place.   In the present case, our  attention was drawn to some correspondence which shows that one of the members was called upon to act as a member of another Tribu- nal and the award in question was pronounced after informing the  Government of the procedure which the Chairman and  the remaining members intended to adopt.   In  the  view I have taken, this appeal must fail,  and  I would accordingly dismiss it with costs.      MAHAJAN J.--This is an appeal by special leave from the determination of an industrial dispute by the Industrial Tribunal appointed under Ordinance VI of 1949. Bharat Bank Limited, Delhi, the appellant, is a company registered under the Indian Companies Act.            Act. 469 Its  employees  made certain demands and as a result  of  an unfavourable  response  from the bank it appears  that  they struck  work on the 9th March, 1949.  The bank in  its  turn served  notices  on  them to resume work  and  proceeded  to discharge  a number of them between the 19th March and  24th March  as  they  failed to do so.   The  Central  Government constitued  a Tribunal consisting of three persons  for  the adjudication  of  industrial disputes in  banking  companies under  section  7  of the Industrial Disputes  Act  (XIV  of 1947), The disputes mentioned in schedule II of the  notifi- cation  were  referred under section 10 of the Act  to  this Tribunal. Item 18 of this schedule reads as follows :-- "Retrenchment and victimization (Specific cases to be  cited by employees)."     The dispute under this item between the Bharat Bank  and its  employees  was heard by the Tribunal at Delhi  and  its award was made on the 19th January, 1950.  It was  published in the Government of India Gazette dated 4th February, 1950, and  was  declared to be binding for a period of  one  year. The award of the Tribunal was signed by two out of its three members.     A  preliminary  objection was raised on  behalf  of  the Central  Government as well as on behalf of the  respondents that  this Court had no jurisdiction to grant special  leave to appeal against the determination of an Industrial  Tribu- nal  inasmuch as it did not exercise the judicial powers  of the  State and that its determination was not in the  nature of  a judgment, decree or order of a Court so as to  be  ap- pealable.  This being the first case in which special  leave was  granted from the determination of an Industrial  Tribu- nal,  it is necessary to examine the provisions of the  Con- stitution  dealing  with  this matter and  if  possible,  to



define  the limits of the jurisdiction of this  Court  under article 136. This article is in these terms :--     "(1)  Notwithstanding  anything  in  this  Chapter,  the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order m any cause or matter passed 470 or made by any court or tribunal in the territory of India.    (2)  Nothing in clause (1) shall apply to  any  judgment, determination,  sentence  or  order passed or  made  by  any court  or tribunal constituted by or under any law  relating to the Armed Forces."    The article occurs in Chapter IV of Part V of the Consti- tution:   "The  Union Judiciary."  Article  deals  with  the establishment and constitution of the Supreme Court. Article 131  confers original jurisdiction on this Court in  certain disputes  arising  between the Government of India  and  the States etc.  Articles and 133 deal with the appellate juris- diction of the Court in appeals from High Courts within  the territory of India in civil matters.  By article 134 limited right  of  appeal in criminal cases has been  allowed.   The Judicial Committee of the Privy Council which was the  high- est  Court of appeal for India prior to 10th October,  1949, was  not  a Court of criminal appeal in the sense  in  which this  Court has been made a Court of criminal  appeal  under article 134.  It could only entertain appeals on the  crimi- nal  side  in  exercise  of the  prerogative  of  the  King. Article  135 empowers this Court to hear all  appeals  which under  existing laws could be heard by the Federal Court  of India.  By the Abolition of Privy Council Jurisdiction  Act, 1949,which  came into force on the 10th October,  1949,  all the powers that were possessed by the Judicial Committee  of the  Privy Council in regard to cases or matters arising  in India   became  exercisable  by  the Federal Court of  India whether those powers were exercisable by reason of statutory authority  or under the prerogative of the King. The  powers of  the  Judicial Committee were conferred upon  it  by  the Judicial  Committee Act, 1844 (7 & 8 Vict., C. 69).  Appeals lay  to  His Majesty in Council from  judgments,  sentences, decreesor orders of any Court of justice within any  British colony  or possession abroad. Closely following article  135 which  confers all the powers of the Judicial  Committee  on the  Supreme Court comes article 136. The language  employed in  this  article  is very wide and is  of  a  comprehensive character.  Powers given 471 are of an overriding nature.  The article commences with the words  "Notwithstanding  anything in this  Chapter."   These words indicate that the intention of the Constitution was to disregard  in extraordinary cases the limitations  contained in the previous articles on this Court’s power to  entertain appeals.   These  articles dealt with the  right  of  appeal against final decisions of High Courts within the  territory of India. Article 136, however, overrides that qualification and empowers this Court to grant special leave even in cases where  the judgment has not been given by a High  Court  but has  been given by any Court in the territory of India;   in other words, it contemplates grant of special leave in cases where a Court subordinate to a High Court has passed or made any order and the situation demands that the order should be quashed  or  reversed even without having  recourse  to  the usual procedure provided by law in the nature of an  appeal, etc. The word "order" in article 136 has not been  qualified by the word "final." It is clear, therefore, that the  power to  grant special leave under this article against an  order



of a Court could be exercised with respect to  interlocutory orders also.   Another new feature introduced in article 136 is  the power given to grant special leave  against  orders, and determinations etc. of any tribunal in the territory  of India.  This  word did  not  find  place  in   the  Judicial Committee  Act, where the phrase used was "a Court  of  jus- tice."   It  is the introduction of this new  expression  in article 136 that has led to considerable argument as to  its scope.   Another expression that did not find place  in  the Judicial  Committee Act but has been introduced  in  article 136 is the word "determination." A question has been  raised as to the meaning to be given to these words in the article. On the one hand, it was contended that the words "determina- tion" and "tribunal" were introduced in the article in order to bring within the scope of the applellate jurisdiction  of this  Court all orders of tribunals of  different  varieties and  descriptions.  On the other hand, it was said that  the words  "determination"   and  "tribunal" were added  in  the article by way of abundant caution and 472 the intention was that if a tribunal exercised the  judicial powers  of  the  State and the decision was  passed  in  the exercise  of that power, this Court as the highest  judicial Court  in the Republic would have power, if  it  considered, necessary  in the ends of justice, to grant  special  leave. Clause (2) of article 136 excludes the jurisdiction of  this Court  in  respect of military Courts. or Tribunal.   It  is interesting to observe that in articles 138, 139 and 140 the Constitution has conferred powers on Parliament for  further enlargement of the powers of this Court.     Two  points  arise for determination in this  case:  (1) whether the word "tribunal" in this article has been used in the same sense as "Court," or whether it has been used in  a wider sense, and (2) whether the word "determination" in the article includes within its scope the determinations made by Industrial  Tribunals or other similarly constituted  bodies or  whether  it has reference only to  determinations  of  a Court  or a tribunal of a purely  judicial   character.   It was  conceded by the learned counsel appearing for the  Cen- tral Government, Mr. Alladi Krishnaswami Aiyar, that if  any tribunal,  whether administrative, domestic  or  quasi-judi- cial,  acts  in excess of its jurisdiction, then it  can  be controlled by the High Courts under the powers conferred  on them  by article 226 by the issue of a writ  of  certiorari. It  was  said that if the Industrial Tribunal in  this  case could  be proved to have trespassed beyond the limits 0  its statutory  jurisdiction, then the remedy lies elsewhere  and not  by a petition of special leave under article  136.  Mr. Alladi’s  contentions may be briefly summarized as  follows: (1) The expression "tribunal -" means seat of a judge, or  a court  of  justice. Its necessary attribute is that  it  can give  a  final judgment between two  parties  which  carries legal  sanction by its own force.  That the word  "tribunal" in  juxtaposition  to  the word "court" could  only  mean  a tribunal  ’which exercised judicial functions of  the  State and  did not include within its ambit a tribunal  which  had quasi-judicial  or administrative powers.  (2) The kinds  of orders against which special leave to appeal could be  given under article 136  473 have  to  be of the same nature as passed by a Court  ,’  in other  words, it was said that unless there was  a  judicial determination  of  a controversy between  two  parties,  the order  would  not  be appealable.  That in the  case  of  an Industrial Tribunal what gives binding force to the award is



the declaration of the government, that the spark of life to it is given by that declaration and without that, the  award of  the Tribunal is lifeless and has no  enforceability  and hence cannot be held to be of an appealable nature.  It  was further  said that in cases between the Government  and  its employees, by the procedure prescribed in the Act the  award could also be rejected, and that being so, by its own deter- mination  a tribunal could not impose a liability or  affect rights. Dr. Bakshi Tek Chand, appearing for the bank, on the other hand argued that whenever a tribunal, whether exercis- ing  judicial  or  quasi-judicial  functions,  determined  a matter  in a judicial manner, then such a  determination  is within article 136.  It was said that an Industrial Tribunal has no administrative or executive functions, that its  duty is to adjudicate on an industrial dispute, i.e., to act as a Judge,  on certain kinds of disputes between  employers  and employees  and that its functions are of a judicial  nature, though the ambit of the powers conferred is larger than that of an ordinary Court of law inasmuch as it can grant reliefs which no Court of law could give, but that is because of the powers conferred on it by law.  It was argued that the plain words  of the article should not be given a  narrow  meaning when  the  intention of the Constitution was to  confer  the widest  power on this Court.  It was further contended  that as  between  private  employers and employees  and  even  in certain  cases  between  Government and  its  employees  the decision  of the Tribunal was binding on the Government  and Government  had no power either to affirm, modify or  reject it. All that it was authorised to do was to announce it  and by its declaration give it enforceability; that fact, howev- er,  could not affect the question of appealability  of  the determination under article 136. It was finally argued  that powers should be exercised by this Court wherever there is a miscarriage 474 of  justice  by a  determination  of  any tribunal and  that if  the  intention of the Constitution by use  of  the  word "tribunal"was in the same sense as "court," then it was  not necessary to import it in article 136, because all tribunals that exercise judicial functions fall within the  definition of  the  word "court" though they may not have been  so  de- scribed.     After considerable thought I have reached the conclusion that the preliminary objection should be overruled. I see no cogent  reasons to limit the plain words of the statute  and to  place a narrow interpretation on words of widest  ampli- tude  used therein.  In construing the articles of the  Con- stitution it has always to be remembered that India has been constituted into a sovereign democratic republic in order to ensure  justice  to all its citizens.  In other  words,  the foundations  of this republic have been laid on the  bedrock of justice. To safeguard these foundations so that they  may not  be  undermined by  injustice  occurring  anywhere  this Court has been constituted.  By article S2 of the  Constitu- tion  the  Court is empowered to see  that  the  fundamental rights conferred on the citizens by the Constitution are not in  any  way  affected.  By article 136 it  has  been  given overriding  power to grant special leave to  appeal  against orders of courts and tribunals which go against the  princi- ple  of  natural justice and lead to  grave  miscarriage  of justice.  The exercise of these, powers could only have been contemplated  in  cases which affect the  rights  of  people living  within  the territory of India in respect  of  their person,  property  or status. The question,  therefore,  for consideration  is whether the jurisdiction conferred by  use



of  unambiguous phraseology and by words which have a  plain grammatical meaning and are of the widest amplitudeshould be limited  and restricted on considerations suggested  by  Mr. Alladi.  The construction suggested by the learned  counsel, if  accepted,  would in the first instance make the  use  of certain  words in the article unnecessary and redundant  and would  run  counter to the spirit of the  Constitution.   It must be presumed that the draftsmen of the Constitution knew well the fact that there were a number of tribunals  consti- tuted in this country  475 previous to the coming into force of the Constitution  which were  performing certain administrative, quasi  judicial  or domestic  functions, that some of them had  even  the  trap- pings  of a Court but in spite of those trappings could  not be given that description. It must also be presumed that the Constitution-makers were aware of the fact that the  highest Courts  in  this country had held that  all  tribunals  that discharged judicial functions fell within the definition  of the  expression "Court."  If by the use of the word  "tribu- nal"  in article 136 the intention was to give it  the  same meaning as "Court," then it was redundant and unnecessary to import  it  in  the article because, by  whatever  name  de- scribed, such a tribunal would fall within the definition of the word "Court."  The word "Court" has a well-known meaning in legislative history and practice.     As  pointed out in Halsbury’s Laws of England, the  word "Court" originally meant the King’s Palace but  subsequently acquired the meaning of (1) a place where justice was admin- istered, and (2) the person or persons who administer it. In the  Indian  Evidence  Act it is defined  as  including  all judges  and magistrates and all persons  except  arbitrators legally authorized to take evidence.  This definition is  by no  means exhaustive and has been framed only for  the  pur- poses of the Act.  There can be no doubt that to be a Court, the  person or persons who constitute it must  be  entrusted with  judicial  functions, that is,  of  deciding  litigated questions  according to law.  However, by agreement  between parties arbitrators may be called upon to exercise  judicial powers  and  to decide a dispute according to law  but  that would  not  make the arbitrators a Court. It appears  to  me that before a person or persons can be said to constitute  a Court it must be held that they derive their powers from the State  and are exercising the judicial powers of the  State. In  R.v.  London County Council (1), Saville L.J.  gave  the following meaning to the word "Court" or "judicial  authori- ty" :--  (1) [1931]2K.B. 215. 61 476     "It  is not necessary that it should be a Court  in  the sense  that  this Court is a Court, it is enough  if  it  is exercising,  after hearing evidence, judicial  functions  in the  sense  that  it has to decide  on  evidence  between  a proposal  and an opposition; and it is not necessary to   be strictly  a Court  if it is a tribuna which has  to   decide rightly after hearing evidence and opposition."      As  pointed out in picturesque language by Lord  Sankey L.C. in Shell Co. of Australia v. Federal  Commissioner   of Taxation(1), there are tribunals  with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense  of  exercising judicial power.  It seems to  me  that such tribunals though they are not full-fledged Courts,  yet exercise  quasi-judicial functions and are within the  ambit of  the word "tribunal" in article 136 of the  Constitution. It  was pointed out in the above case that a tribunal is not



necessarily a Court in this strict sense because it  gives a final  decision,  nor because it hears witnesses   oath  nor because  two  or more contending parties  appear  before  it between  whom it has to decide, nor because it  gives  deci- sions which affect the rights of subjects nor because  there is an appeal to a Court, nor  because it is a body to  which a matter is referred by  another body.  The intention of the Constitution  by  use of the word "tribunal" in the  article seems  to  have been to include within the scope of  article 136   tribunals adorned with similar trappings as Court  but strictly not coming within that definition.  Various   defi- nitions of the phrase "judicial power" have been  given from time to time.   The best definition of it on  high authority is the one given by Griffith C.J. in  Huddart, Parker &  Co. v. Moorehead(2), wherein it is  defined as follows :-    "The  words  ’judicial power’ as used in section  71  the Constitution mean  the power  which every  sovereign author- ity must of necessity have to decide  controversies  between its  subjects, or between itself and  its subjects,  whether the rights relate to life, liberty or  property.  The  exer- cise of this power does not begin [19311 A..C. 275.                (2) 8 C.L.R. 330, 357.  477 until  some tribunal which has power to give a  binding  and authoritative decision (whether subject to appeal or not) is called upon to take action."     It  was conceded that a tribunal constituted  under  the Industrial  Disputes  Act,  1947, exercises  quasi  judicial powers.   That phrase implies that a certain content of  the judicial  power  of the State is vestedit and it  is  called upon  to  exercise it.  An attempt was made  to  define  the words "judicial" and "quasi judicial" in the case of  Cooper v. Wilson (1).  The relevant quotation reads thus :--     "A  true judicial decision presupposes an existing  dis- pute  between  two or more parties, and then  involves  four requisites  :- (1) The presentation necessarily  orally)  of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact  by  means of evidence adduced by the  parties  to  the dispute  and often with the assistance of argument by or  on behalf  of the parties on the evidence; (3) if  the  dispute between  them is a question of law, the submission of  legal argument  by the parties, and (4) a decision which  disposes of  the whole matter by a finding upon the facts in  dispute and  application  of  the law of the land to  the  facts  so found,  including where required a ruling upon any  disputed question of law.  A quasi-judicial decision equally  presup- poses  an existing’ dispute between two or more parties  and involves  (1) and (2), but does not necessarily involve  (3) and never involves (4). The place of (4)is in fact taken  by administrative action, the character of which is  determined by the Minister’s free choice."    The extent of judicial power exercised by an  ]industrial Tribunal will be considered hereinafter in the light of  the observations cited above.     Reference  was made to certain passages  from  Professor Allen’s  book on Law and Order, Chapter IV, page  69,  where mention  is  made of the kinds of  administrative  tribunals functioning in various countries today.  Porter on  Adminis- trative Law,  1929 Edn., (1) [1937] 2 K.B. 309, at p. 340. 478 page  194, was also relied upon. There can be no doubt  that varieties of administrative tribunals and domestic tribunals are  known  to  exist in this country as well  as  in  other



countries  of the world but the real question to  decide  in each case is as to the extent of judicial power of the State exercised by them.  Tribunals which do not derive  authority from  the  sovereign power cannot fall within the  ambit  of article 136.  The condition  precedent for bringing a tribu- nal  within  the ambit of article 136 is that it  should  be constituted by the State. Again a tribunal would be  outside the ambit of article 136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative  or  executive  duties.  Tribunals,  however, which  are found invested with certain functions of a  Court of  justice and have some of its trappings also  would  fall within the ambit of article 136 and would be subject to  the appellate control of this Court whenever it is found  neces- sary to exercise that control in the interests of justice.     It  is  now convenient to consider  whether  a  tribunal constituted  under the Industrial Disputes Act, 1947,  exer- cises all or any one of the functions of a Court of  justice and  whether it discharges them according to law or  whether it can act as it likes in its deliberations and is guided by its own notions of right and wrong.  The phrase  "industrial dispute" has been defined in section 2 clause (k) of the Act as follows :--      "any  dispute or difference between employers  and  em- ployees, or between employers and workmen, or between  work- men and workmen, which is  connected with the employment  or non-employment or the terms of employment or with the condi- tions of labour, of any person."     Such  a  dispute concerns the rights  of  employers  and employees.  Its decision affects the terms of a contract  of service  or the conditions of employment. Not only  may  the pecuniary  liability of  an employer be considerably affect- ed  by the adjudication of such dispute  but  it   may  even result  in  the imposition of punishments on  him.   It  may adversely  479 affect  the employees as well.  Adjudication of such a  dis- pute  affects valuable rights.  The dispute and  its  result can  always be translated in terms of money. The  point  for decision  in  the dispute usually is how much money  has  to pass out of the pocket of the employer to the pocket of  the employee in one form or another and to what extent the right of freedom of contract stands modified to bring about indus- trial peace. Power to adjudicate on such a dispute is  given by section 7 of the statute to an Industrial Tribunal and  a duty  is cast on it to adjudicate it in accordance with  the provisions  o Act.  The words underlined clearly imply  that the  dispute has to be adjudicated according to law and  not in any other manner.  When the dispute has to be adjudicated in  accordance  with the provisions of the Act,  it  follows that the tribunal has to adhere to law, though that law  may be different from the law that an ordinary Court of  justice administers.   It  is  noteworthy that the  tribunal  is  to consist  of experienced judicial officers and its  award  is defined  as a determination of the dispute.  The  expression "adjudication"  implies  that the tribunal is to  act  as  a judge of the dispute; in other words, it sits as a Court  of justice  and does not occupy the chair of an  administrator. It is pertinent to point out that the tribunal is not  given any executive or administrative powers. In section 38 of the Act  power is given to make rules for the purpose of  giving effect to the provisions of the Act.  Such rules can provide in respect of matters which concern the powers and procedure of tribunals including rules as to the summoning of witness- es,  the  production of documents relevant to  the  subject-



matter  and as to appearance of legal practitioners in  pro- ceedings  under  this Act.  Rule 3 of these  rules  provides that  any  application for the reference  of  an  industrial dispute to a tribunal shall be made in form (A) and shall be accompanied  by a statement setting forth, inter  alia,  the names of the parties to the dispute and the specific matters of dispute.  It is in a sense in the nature of a plaint in a suit.  In rule 13 power is given to administer oaths.   Rule 14 provides as follows :-   "A tribunal may accept, admit or call  for 480 evidence  at any stage of the proceedings before it  and  in such manner as it may think fit."     Rule 17 provides that at its first sitting the  tribunal is.  to call upon the parties to state their case.  In  rule 19 provision has been made for proceedings ex-parte. Rule 21 provides  that in addition to the powers conferred  by  sub- section (3) of section 11 of the Act, a tribunal shall  have the  same  powers as are vested in a civil Court  under  the Code  of Civil Procedure when trying a suit,  in respect  of the following matters, namely, (a) discovery and inspection; (b) granting of adjournment; (c) reception of evidence taken on  affidavit; and that the tribunal may summon and  examine suo  motu  any  person whose evidence appears to  it  to  be material.  It further says that the tribunal shall be deemed to  be a civil Court within the meaning of sections 480  and 482  of the Code of Criminal Procedure, 189S. Rule  21  says that the representatives of the parties, appearing before  a tribunal, shall have the right of examination,  cross-exami- nation  and re-examination and. of addressing the  Court  or Tribunal when all evidence has been called. In rule 30 it is provided that a, party to a reference may be represented  by a legal practitioner with the permission of the tribunal and subject  to such conditions as the tribunal may  impose.  In section  11 (3) it is laid down that a tribunal  shall  have the  same  powers as are vested in a civil Court  under  the Code  of Civil Procedure when trying a suit, in  respect  of the following matters, namely, (a) enforcing the  attendance of any person and examining him on oath; (b) compelling  the production  of documents and material objects;  (c)  issuing commissions for the examination of witnesses; (d) in respect of  such other matters as may be prescribed; and  every  in- quiry or investigation by a tribunal shall be deemed to be a judicial  proceeding within the meaning of sections 193  and 228 of the Indian Penal Code. It is difficult to conceive in view  of these provisions that the Industrial Tribunal  per- forms  any funCtions other than that of a  judicial  nature. The  tribunal has certainly the first three  requisites  and characteristics  of a Court as defined above.  It  has  cer- tainly  a considerable element of the fourth  also  inasmuch as.     481 the  tribunal  cannot take any  administrative  action,  the character  of which is determined by its own choice. It  has to  make the adjudication in accordance with the  provisions of the Act as laid down in section 7. It consists of persons who are qualified to be or have been judges. It is its  duty to  adjudicate  on a serious dispute between  employers  and employees  as affecting their right of freedom  of  contract and  it  can impose liabilities of a  pecuniary  nature  and disobedience  of  its award is made punishable.  The  powers exercisable by a tribunal of this nature were considered  in a  judgment’ of the Federal Court of India in Western  India Automobile   Association v.  Industrial   Tribunal,   Bombay (x),   and it was observed that such a tribunal can do  what



no Court  can,  namely, add to or alter the terms or  condi- tions   of  the contract of service.   The  tribunal  having been entrusted with the duty of adjudicating a dispute of  a peculiar  character, it is for this reason that it is  armed with  extraordinary  powers.  These  powers,   however,  are derived  from the statute.  These are the rules of the  game and   it   has to  decide  according to  these  rules.   The powers conferred have the sanction of law behind it and  are not  exercisable by reason of any discretion vested  in  the members  of the tribunal.  The adjudication of  the  dispute has  to be in accordance with evidence legally  adduced  and the  parties have a right to be heard and being  represented by a legal practitioner.  Right to examine and cross-examine witnesses has been given to the parties and finally they can address  the  tribunal when evidence is closed.   The  whole procedure  adopted by the Act and the rules is  modelled  on the  Code of Civil Procedure. In my opinion, therefore,  the Industrial  Tribunal has all the necessary attributes  of  a Court  of justice.  It has no other function except that  of adjudicating  on  a dispute.  It is no doubt  true  that  by reason of the nature of the dispute that they have to  adju- dicate the law gives them wider powers than are possessed by ordinary  Courts of law, but powers of such a nature do  not affect (1) [1949]] F.C.R. 321. 482 the question that they are exercising judicial power.  Stat- utes like the Relief of Indebtedness Act, or the  Encumbered Estates  Act have conferred powers on Courts which  are  not ordinarily known to law and which affect contractual rights. That  circumstance  does  not make them  anything  else  but tribunals exercising judicial power of the State, though  in a  degree.  different from the ordinary Courts  and.  to  an extent  which  is  also different from that  enjoyed  by  an ordinary  Court  of law.  They may rightly be  described  as quasi-judicial  bodies because they are out of the hierarchy of the ordinary judicial system but that circumstance cannot affect  the  question  of their being within  the  ambit  of article 136.   It may also be observed that the tribunal is deemed to  be a  civil Court for certain purposes as laid down in rule  21 of  the rules above cited and in section 11(3) of  the  Act. As  a civil Court if it exercises any of the powers  contem- plated by this section its decisions would become subject to appeal  to  a District Judge and a  fortiori  this   Court’s power   under  article  136. would at once be  attracted  in any case in respect of these matters.  Again, in Chapter  VI of  the  Act breach of the terms of an award has  been  made punishable by section 29 of the Act.  The result  therefore, is that disobedience of the terms of an award is  punishable under the Act.  That being so, a determination of the tribu- nal  not  only affects the freedom of contract  and  imposes pecuniary  liability  on the employer or  confers  pecuniary benefits  on  the employees, but it  also  involves  serious consequences  as  failure  to observe those  terms  makes  a person liable to the penalties laid down in Chapter VI.   An award  which  has these serious consequences can  hardly  be said  to have been given by a tribunal which does not  exer- cise some of the most  important judicial  functions  of the State.     Considerable stress was laid by Mr. Alladi on the provi- sions of sections 15 and 19 of the Act. Section 15 enacts as follows :---      "(1) Where an industrial dispute has been referred to a Tribunal for adjudication, it shall hold its



   483 proceedings expeditiously and shall, as soon as  practicable on the conclusion thereof, submit its award to the appropri- ate Government.     (2)  On receipt of such award,  the appropriate  Govern- ment  shall  by  order in writing declare the  award  to  be binding.     Provided  that  where the appropriate  Government  is  a party to the dispute and in its opinion it would be  inexpe- dient  on public grounds to give effect to the whole or  any part of the award, it shall on the first available  opportu- nity  lay the award together with the statement of its  rea- sons  for not making a declaration as aforesaid  before  the Legislative Assembly of the province, or where the appropri- ate  Government, is the Central Government, before the  Cen- tral Legislature, an d shall, as soon as may be, cause to be moved  therein  a resolution for the  consideration  of  the award;  and the Legislative Assembly or as the case may  be, the  Central  Legislature, may by  its  resolution  confirm, modify or reject the award.     (3) On the passing of a resolution under the proviso  to sub-section  (2), unless the award is rejected thereby,  the appropriate  Government shall11 by order in writing  declare the award as confirmed or modified by the resolution, as the case may be, to be binding.     (4) Save as provided in the proviso to subsection (3) of section  19,  an  award declared to be  binding  under  this section shall not be called in question in any manner."     As  regards clause (4), it was conceded rightly  that  a law dealing with industrial disputes and enacted in the year 1947  could  not  in any way,affect the  provisions  of  the Constitution  laid  down  in article 136.  It  was  however, strenuously  urged  that the award of the  tribunal  had  no binding  force by itself and unless the appropriate  Govern- ment  made  a  declaration in writing under  clause  (2)  of section  15, this award was a lifeless document and  had  no sanction  behind  it and therefore it could  not  have  been contemplated  that  if would be appealable even  by  special leave.   In  my opinion, this contention  is  unsound.   The provisions of clause (2) of 484 section  15 leave no discretion in the Government either  to affirm, modify or reject the award.  It is bound to  declare it  binding.  It has no option in the matter.  In    such  a situation  it  is the determination by  the  tribunal   that matters.  Without  that  determination  Government    cannot function.  It does not possess the power either   to adjudi- cate the dispute or to alter it in any manner    whatsoever. That power vests in the tribunal alone.   The rights of  the parties are really affected by the   adjudication  contained in the award, not by the   Government’s declaration which is automatic.   It is   no doubt true that announcement of  the award  by the   Government gives it binding force  but  that does  not  affect the question of the appealability  of  the determination  under article 136 of the  Constitution.   The apposite  answer  to  this contention may be  given  in  the language of the decision in Rex v. Electricity Commissioners (1).  The relevant passage runs thus :--    "It is necessary, however, to deal with what I think  was the main objection of the Attorney-General. In this case  he said the Commissioners come to no decision at all.  They act merely  as  advisers.  They recommend an order  embodying  a scheme to the Minister of Transport, who may confirm it with or  without modifications. Similarly the Minister of  Trans- port  comes  to  no decision. He submits the  order  to  the



Houses  of  parliament, who may approve it with  or  without modifications.  The  Houses of Parliament may  put  anything into the order they please, whether consistent with the  Act of  1919,  or  not.  Until they have  approved,  nothing  is decided,  and  in truth the whole procedure,  draft  scheme, inquiry,  order, confirmation, approval, is only part  of  a process  by which Parliament is expressing its will, and  at no  stage is subject to, any control by the Courts..  It  is unnecessary  to emphasize the constitutional  importance  of this  contention.  Given its full effect, it means that  the checks  and  safeguards which have been imposed  by  Act  of Parliament,  including the freedom from  compulsory  taking, can be removed, and new and onerous and (1) [1924] 1 K.B. 171, at 207.    485 inconsistent  obligations imposed without an Act of  Parlia- ment, and by simple resolution of both Houses of Parliament. I  do  not find it necessary to determine  whether,  on  the proper  construction of the statute, resolutions of the  two Houses of Parliament could have the effect claimed.  In  the provision  that the final decision of the  Commissioners  is not  to be operative until it has been approved by  the  two Houses  of Parliament I find nothing inconsistent  with  the view  that  they act judicially and within the  limits  pre- scribed by Act of Parliament, and that the Courts have power to keep them within those limits.  It is to be noted that it is  the  order of the Commissioners  that  eventually  takes effect, neither the Minister of Transport who confirms,  nor the Houses of Parliament who approve. can under the  statute make  an order which in respect of the matters  in  question has any operation.  I know of no authority which compels  me to  hold that a proceeding cannot be a  judicial  proceeding subject to confirmation or approval, even where the approval has to be that of the Houses of Parliament.  The authorities are to the contrary     The  observations,  though they relate to a  case  which concerns the issue of a writ of prohibition and  certiorari, have  application to the present case.  Here  no  discretion whatsoever has been left in the Government in ordinary cases to  either  modify  or t0 reject the  determination  of  the tribunal.  The fact that the Government has to make a decla- ration  after the final decision of the tribunal is  not  in any  way inconsistent with the view that the  tribunal  acts judicially.   It  may also be pointed out  that  within  the statute itself a clue has been provided which shows that the circumstance  that the award has to be declared by an  order of Government to be binding does not affect the question  of its appealability.  In article 136 clause (2) express provi- sion  has been made for excepting from the ambit of  article 136  the  decisions of military courts  and  tribunals.   It follows  that but for the exception it was  considered  that these  would be within article 136 clause (1).  It is  quite clear  from the various provisions of the Army Act that  the decisions  of  military tribunals or courts are  subject  to confirmation either by 486 the Commander-in-Chief or various other military    authori- ties.   It  is only after such confirmation that  ’that  can operate.  It has never been considered that  fact in any way affects the question of their appealability.    Rex  v. Minister of Health (1) also supports  this  view. There  by  the  Housing Act, 1925, by section  40,  a  local authority  which  had  prepared an  improvement  scheme  was required to present a petition to the Minister praying  that an order should be made confirming such scheme.  Sub-section



(3)  provided that the Minister after considering the  peti- tion  may cause a local inquiry to be made and may by  order confirm  the scheme with or without conditions or  modifica- tions.  In sub-section (5) it was stated that the  order  of the  Minister when made shall have effect as if  enacted  in this  Act.  It was held be the Court of Appeal that  as  the order  made by the Minister was made without  the  statutory conditions having been complied with it was ultra vires  and therefore a writ of certiorari should issue for the  purpose of quashing it.  Reliance was placed by Scrutton L.J. on Rex v.  Electricity  Commissioners (2).  The same.view  was  ex- pressed  in  Minister  of Health v. The King  (3).   It  was observed  that judicial review by prohibition or a  writ  of certiorari  was  permissible if the Minister  of  Health  in confirming  the order exceeded his statutory powers.  It  is clear  therefore  that  simply because an order  has  to  be confirmed  by a Minister or by the Government it in any  way affects the power of judicial review.  Reference may also be made to the observations in Smith v. The Queen (4).  At page 623  it was observed that it is a common principle in  every case  which has in itself the character of a  judicial  pro- ceeding that the party against whom a judgment is to operate shall have an opportunity of being heard.  In this sense  it can hardly be disputed that the proceeding before an  indus- trial  Tribunal is a judicial proceeding.  In  my  judgment, therefore, the contention raised by Mr. Alladi that this    (1) [1939] 2 K.B. 98.                     (3) [1931] A.C. 494;    (2) [1924] 1 K.B. 171.                    (4) 3 A.C. 245. 487 Court  cannot exercise its powers under article because  the decision of the tribunal has no force till a declaration  is made by the Government cannot be sustained.     As  regards section 19, it was contended that  an  award declared  by the appropriate Government under section 15  to be binding can only come into operation on such date as  may be  specified  by the appropriate Government  and  can  only remain in operation for such period not exceeding one  year, as  may  be fixed by that Government and it  was  said  that herein the Government had the power to state the period from which  the award was to commence and the time for  which  it was  to remain in force. This section does not, in my  opin- ion, affect the question of the appealability of the  deter- mination of the tribunal.  Government has certain  functions to  perform in its own sphere after the award is  made.   In certain cases it is bound to declare that award binding.  In other  cases, when it is itself a party to the  dispute,  it has  certain overriding powers and these  overriding  powers are  that  if it considers that the award is not  in  public interests it may refer it to the legislature.  The  legisla- ture,   however, has the power to modify, accept  or  reject the award.  These overriding powers presuppose the existence of a valid determination by a tribunal.  If that  determina- tion is in excess of jurisdiction or otherwise proceeds in a manner that offends against the rules of natural justice and is set aside by exercise of power under article 136, then no occasion arises for exercise of governmental power under the Act.   Given a valid award, it could not be denied that  the Government  could exercise its powers in any manner it  con- sidered  best and the exercise of that power is outside  the constitution  of this Court.  In this  connection  reference was  made  to  Moses v. Parker (1).  The  passage  on  which emphasis was laid reads as follows :--      "The  Court has been substituted for the  commissioners to  report  to the governor. The difference  is  that  their



report is to be binding on him.  Probably it was (1) [1896] A.C. 488 thought that the status and training of the judges made them the  most proper depositaries of that power. But  that  does not make their action a judicial action in the sense that it can be tested and altered by appeal.  It is no more judicial than  was the action of the commissioners and the  governor. The Court is to be guided by equity and good conscience  and the  best  evidence.  So were the commissioners.   So  every public officer ought to be.  But they are expressly  exoner- ated from all rules of law and equity, and all legal  forms. How  then can the propriety of their decision be  tested  on appeal  ? What are the canons by ’which this Board is to  be guided in advising Her Majesty whether the Supreme Court  is right  or wrong ? It seems almost impossible that  decisions can be varied except by reference to some rule,  whereas the Court  making  them  is free from rules.   If  appeals  were allowed,  the  certain  result would be  to  establish  some system  of rules, and that is the very thing from which  the Tasmanian Legislature has desired to leave the Supreme Court free  and  unfettered in each case.  If it were  clear  that appeals  ought to be allowed such difficulties would  doubt- less be met somehow.  But there are strong arguments to show that the matter is not of an appreciable nature."     One  would  have expected that after  this  opinion  the decision would have been that the Judicial Committee had  no jurisdiction  to  entertain the appeal but  their  Lordships proceeded  to base their decision not on this ground but  on the ground that this was not a fit case for the exercise  of the prerogative of the King. In my opinion, the observations made in that case have no apposite application to the provi- sions  of the statute with which we are concerned. I do  not see any difficulty in this case in testing the propriety  of the  determination  of the tribunal.  This Court is  not  to substitute its decision for the determination of the  tribu- nal when granting relief under article 136.  When it chooses to interfere in the exercise of these extraordinary  powers, it  does  so because the tribunal has  either  exceeded  its jurisdiction or has approached the questions referred to  it in a manner which is likely to 489 result  in injustice or has adopted a procedure  which  runs counter  to the well established rules of  natural  justice. In  other words, if it ,has denied a hearing to a  party  or has refused to record his evidence or has acted in any other manner,  in an arbitrary or despotic fashion.  In such  cir- cumstances  no  question arises of this  Court  constituting itself  into  a tribunal and assuming powers of  settling  a dispute.   All that the Court when it entertains  an  appeal would  do is to quash the award and direct the  tribunal  to proceed  within the powers conferred on it and approach  the adjudication  of  the  dispute according  to  principles  of natural  justice.  This Court under article  136  would  not constitute itself into a mere court of error.  Extraordinary powers  have to be exercised in rare and  exceptional  cases and  on well known principles.  Considered in the  light  of these principles, there is no insuperable difficulty in  the present case of the nature pointed out in the passage  cited above.   It was conceded that the High Court could  exercise powers under section 226 and could quash an award but it was said  that under article 136 this power should not be  exer- cised  in an appeal.  I do not see why ?  Particularly  when after the High Court has passed any decision on an  applica- tion made to it in exercise of the powers under section 226,



that  decision could be brought to this Court in appeal.  In the matter of an industrial dispute where expedition is  the crux of the matter, it is essential that any abuse of powers by such tribunals is corrected as soon as possible and  with expedition.     It  may be mentioned that it is no novel practice for  a court  empowered  to  grant special leave  to  exercise  its powers  even  though  there may be  intermediate  rights  of appeal  or  other remedies available, if  it  is  considered essential to do so in extraordinary situations.  Vide  Bent- wick’s Privy Council Practice, 3rd Edn., page 125.   Therein it is stated as follows :--     "In several cases from Jamaica, the Privy Council grant- ed leave to appeal to the Queen in Council directly from the Supreme  Court, without an intermediate appeal (which  would have been attended with much 490 expense  and  delay) to the Court of Error  in  the  island, there being in each of those cases manifestly some point  of law raised which deserved discussion."     The cases were In Re Barnett(1),  Harrison v. Scott (2), and  Attorney-General  of  Jamacia  v.  Manderson  (s).  The phraseology  employed in article 136 itself  justifies  this course.   The article empowers this Court to  grant  special leave against sentences or orders made by any court.  In all other  articles of the Constitution right of appeal is  con- ferred  against  final  decisions of the  highest  court  of appeal   in  the  country but under this  article  power  is given  to this Court to circumvent that procedure if  it  is considered  necessary  to do so.  I am,  therefore,  of  the opinion  that  the mere circumstance that a  remedy  in  the nature  of a writ of certiorari is open to  the  petitioners does  not necessarily lead to the conclusion that the  power of  this  Court under article 136 is circumscribed  by  that circumstance. Whenever judicial review is permissible in one form or another, this Court as the highest Court in the land can  exercise  its special powers  and  circumvent  ordinary procedure  by granting special leave. What it has  to  ulti- mately decide it can decide earlier.     I  now  proceed to examine some of the  cases  to  which reference was made by Mr. Alladi.     Three  Australian  cases were cited  which  concern  the construction  of  sections 51, 71 and 72 of  the  Australian Constitution (63 and 64 Vict., c. 12).  Section 72  requires that  every Justice of the High Court and every  Justice  of any  other  Court created by the Parliament of  the  Common- wealth  shall subject to the power of removal  contained  in the  section be appointed for life.  Section 71 confers  the whole  judicial  power of the Commonwealth upon  the  Courts therein mentioned and no other tribunal or body can exercise that power. Every Court referred to in section 71 has to  be constituted in the manner provided by section 72. The  ques- tion  in  these cases was as to the meaning  of  the  phrase "judicial power  of the Commonwealth."   Similar  (1)  4 Moo. 453.        (2) 5 Moo. 357.        (3)  6  Moo. 239. 491 phraseology  has not been used in any part of the  Constitu- tion of India and in these circumstances it is difficult  to derive  any assistance from these decisions in  solving  the problem  before  us.  The Constitution of India is  not  mo- delled  on the Constitution of Australia and that being  so, any observations made in decisions given under that  Consti- tution cannot be held to be a safe guide in the  interpreta- tion  of  language employed in  a  Constitution  differently



drafted.     The  first of these cases is Waterside Workers’  Federa- tion of Australia v.J.W. Alexander Ltd. (1). Therein it  was held that the power conferred by the Commonwealth  Concilia- tion  and  Arbitration Act 1904-1915 upon  the  Commonwealth Court of Conciliation and Arbitration to enforce awards made by  it  is part of "the judicial power of  the  Commonwealth "within  the meaning of section 71 of the Constitution,  and can only be vested in the courts mentioned in that  section. Mr.  Alladi placed reliance on a passage at page 467 in  the judgment of Isaacs and Rich JJ., which reads as follows :--     "The  arbitral  part  of the Act,  therefore,  is  quite within the power of pl. xxxv, and is not intended by the Act to  be exercised by an ordinary Court of Justice, which,  it is suggested, Parliament by some strange perversity proceed- ed  to destroy at birth. It is true that enforcement  provi- sions are found.......  But all this was in imitation of the State Acts of Arbitration, and not in reliance on the  Judi- cature  Chapter of the Federal Constitution.   The  arbitral portion  of  the  Act is, in our  opinion,  perfectly  good, subject to its severability from any other portion which may be bad."     It  was argued that the Industrial Tribunal here was  an arbitration  tribunal of the same kind as in  Australia  and exercises  similar  functions.  It is however  pertinent  to observe  that the phraseology employed in section 15 of  the Indian  Act  is different from that used in  the  Australian statute.   The  Indian  statute  has  constituted  different bodies  for different purposes. An Industrial  Tribunal  has been constituted (1) 25 C.L.R. 63 492 only  to discharge one function of adjudication.  It is  not described as an arbitral tribunal.  The Act has avoided  the use  of the word "arbitration" either in    preamble  or  in any of its relevant provisions though the determination  has been named as an award.  In these circumstances it is unsafe to seek any guidance from observations made in this case.     The  next case to which reference was made is  Rola  Co. (Australia)  Proprietary Ltd. v. The Commonwealth (1).   The question  here  was  whether the  Women’s  Employment  Board constituted under the Women’s Employment Act, 1942, did  not exercise  the  judicial power of the Commonwealth.   It  was held that the Board  exercised functions which were arbitral in  character. Emphasis was laid on a passage  occurring  in page 198 of the report which reads as follows :--     "An industrial award lays down rules of conduct for  the future.  It does not purport to ascertain and enforce exist- ing rights; it is directed to the creation of new rights. It is urged on behalf of the plaintiff that a determination  of the Committee does not create a rule of conduct binding  the parties  for the future, but that it authoritatively  deter- mines a possibly controverted question of fact and that  the making of such an authoritative determination is necessarily an  exercise of judicial power.  Reference is made   to  the frequently  quoted  statement of Griffith  C.J.  in  Huddart Parker  &  Co. Pty. Ltd. v. Moorehead (2), approved  by  the Privy  Council  in Shell Co. of Australia  Ltd.  v.  Federal Commissioner of Taxation (8):__     "I  am  of opinion that the words  ’judicial  power’  as used in section 71 of the Constitution mean the power  which every  sovereign authority must of necessity have to  decide controverises between its subjects or between itself and its subjects,  whether  the rights relate to  life,  liberty  or



property.   The exercise of this power does not begin  until some tribunal which has power to give a binding and authori- tative decision (whether subject to appeal or not) is called upon to take action."  (1) 69 C.L.R. 185.                 (2) a C.L.R. 330 at 357.                      (3) [1931] A.C. 275.     493     Reg. 5C gives Committees power. to decide  controversies between subjects relating to their rights and the regulation purports to make those decisions binding and authoritative.     I  am not satisfied that the words of Griffith C.J.  are properly  interpreted when it is said that they mean that  a power  to  make binding and authoritative  decisions  as  to facts is necessarily judicial power.  I direct attention  to the  concluding words--" is called upon to take action."  In my opinion these words are directed to action to be taken by a tribunal which has power to give a binding and  authorita- tive  decision.  The mere giving of the decision is not  the action  to which the learned Chief Justice referred.   If  a body  which  has power to give a binding  and  authoritative decision is able to take action so as to enforce that  deci- sion,  then,  but  only then, according  to  the  definition quoted,  all  the attributes of judicial power  are  plainly present.  I  refer to what I say more in  detail  hereafter, that  the  Privy Council, in the Shell case  (1),  in  which approval was given to the definition quoted, expressly  held that a tribunal was not necessarily a Court because it  gave decisions (even final decisions) between contending  parties which affected their rights.     In Huddart Parker’s case (2), Isaacs 1. referred to  the statement of Palles C.B. in R.v. Local Government Board  for Ireland  (3) "to erect a tribunal into a ’Court’ or  ’juris- diction’,  so  as to make its determinations  judicial,  the essential  element  is  that it should have  power,  by  its determination  within jurisdiction, to impose  liability  or affect rights." "By this," said the learned Chief Baron,  "I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined,  and so  that  the  liability will exist, or the  right  will  be affected,  although the determination be wrong in law or  in fact.   It  is  otherwise of a ministerial  power.   If  the existence  of such a power depends upon a  contingency,  al- though  it  may be necessary for the  officer  to  determine whether  (1)  [1931]  A.C. 275.                (2) 8 C.L.R.  330  at 383.                (3) [1902] 2 I.R. 349 at p. 373. 494 the  contingency has happened, in order to know  whether  he shall  exercise the power, his determination does not  bind. The  happening  of the contingency may be questioned  in  an action  brought  to  try the       the act  done  under  the alleged exercise of the power.  But where the  determination binds, although it is based on an erroneous view of facts or law,  then the power authorizing it is judicial.   There  we get a modern use of the term ’judicial power’." This  state- ment of the characteristics of judicial power looks to what, in Waterside Workers’ Federation of Australia v.  Gilchrist, Watt & Sanderson Ltd.(1), Isaacs and Rich JJ. referred to as the  creation of instant liability in specified  persons  as distinct from laying down a rule or standard of conduct  for the future.    The decision of an ordinary Court  that B is bound to pay money  to  A applies a pre-existing standard of  rights  and duties not created by the Court itself, with the result that



there is an immediately enforceable liability of B to pay to A  the sum of money in question.  The decision of  the  Wom- en’s  Employment Board does not create any  such  liability, nor  does  the  determination of a  Committee  of  Reference create any such liability.  In order to impose an immediale- ly enforceable liability upon any employer, for example,  to pay wages to a particular female, it would be necessary  for the female or some person on her behalf (see reg. 9A) to sue in  a court of competent jurisdiction. If such a  proceeding succeeded  there  would then be a liability created  by  the determination of the court. such a proceeding the determina- tion of the Committee of Reference would be evidence of  the facts to which it related, but that determination would  not in  itself create "liability." The concluding words  of  the passage  quoted above at once distinguish the  present  case from the Australian case.  The award given by an  Industrial Tribunal in respect either of bonus or higher wages, etc. is enforceable by its own force and by the coercive machienary of the  Act and it is not merely a declaration of  a  character  that furnishes a cause of  action  to  the employee to bring a suit on its foot to recover the C.L.R. 482, 512.     495 wages.   An arbitral tribunal’s decision cannot be  enforced unless  it has the sanction of a Court of justice behind  it but  the award of the Tribunal is enforceable under the  Act itself  by the coercive machinery provided therein.   It  is the  terms  of the award that are enforceable  and  not  the terms of the order made by the Government.  It is the breach of  the  terms of the award that is punishable and  not  any breach  of  Government’s order.  The  Government  itself  is bound  to  declare the award binding and it  has  no  option whatsoever  in  the matter.  It is no doubt  true  that  the tribunal  has  not only to decide the  existing  rights  and liabilities  of  the parties and it can lay  down  rules  of conduct  for the future but it does so because by law it  is authorised to do so. Its decision carries the sanction  with it.   The Government is bound to give effect to it  and  the statute  enforces  it by coercive machinery.   In  my  view, therefore,  this  decision  again has no  relevancy  to  the present case.     The third case to which reference was made is Shell  Co. of Australia v. Federal Commissioner of Taxation (1).   That was  an income-tax matter and the decision has been  consid- ered  in  an earlier part of this judgment.   Reference  was also  made to Mohammad Ahmad v. Governor-General in  Council ("), in which it was held that an improvement trust was  not a  civil Court subordinate to the High Court  under  section 115 of the Code of Civil Procedure.  That has no bearing  to the  matter in issue here.  Similar point was  discussed  in Hari v. Secretary of State for India (3).  Labour  Relations Board  v. John East Iron Works Ltd. (4) is a  Canadian  case and  the  decision  proceeded on the same lines  as  in  the Australian cases.     Mr. Sen appearing for the respondents placed reliance on O’Connor  v.  Waldron (5).  The relevant passage  occurs  at page 81 which runs thus :-     The law as to judicial privilege has in process of  time developed.  Originally it was intended for the protection of judges sitting in recognised Courts of   (1) [1931] A.C. 275.               (3) I.L.R. 27 Bom. 424.   (2) I.L.R. 1946 Lah. 16.         (4) A.I.R. 1949 P.C. 129.                             (5) [1935] A.C. 75, 496 Justice  established as such. The object no doubt  was  that



judges  might exercise their functions free from any  danger that they might be called to account for any words spoken as judges.   The doctrine has been extended to tribunals  exer- cising functions equivalent to those of an established Court of  Justice.   In their Lordships’ opinion the  law  on  the subject was accurately stated by Lord Esher in Royal Aquari- um etc. Ltd. v. Parkinson (1), where he says that the privi- lege  applies wherever there is an authorized inquiry which, though  not before a Court of Justice, is before a  tribunal which has similar attributes...This doctrine has never  been extended  further  than to Courts of Justice  and  tribunals acting  in  a manner similar to that in  which  such  Courts act’"     The learned counsel contended that the. word  "tribunal" in article 136 could only have reference to those  tribunals which  exercise functions equivalent to that of a  Court  of Justice. I have no hesitation in holding that the Industrial Tribunal  has similar attributes as that of a Court of  Jus- tice in view of the various provisions to which I have  made reference.  Reference  was  also made  to  certain  passages occuring in pages 422 and 428 of Toronto Corporation v. York Corporation (2).  That was a case of the Municipal Board  of Ontario.  It  was held there that the Board  was  merely  an administrative  tribunal.  Next reliance was placed on  R.v. National  Arbitration Tribunal, Ex-parte Horatio Crowther  & Co.  Ltd.(3).  That dealt with the powers of  tile  National Arbitration  Tribunal.  In my opinion this citation also  is not of much assistance.     It  was again urged by Mr. Alladi that the word  "tribu- nal"  was introduced in the article to provide for cases  of tribunals  like the Board of Revenue.  The  suggestion  does not appear to be sound, because a Revenue Board has all  the attributes of a Court of justice and falls within the  defi- nition  of the word "Court" in matters where it  adjudicates on rights of parties.  (6) [1892] 1. Q.B. 431.           (7) [1938] A.C. &15.  (8) [1947] A.E.R. 693.      497       The word "tribunal" has been used in previous legisla- tion  in a number of statutes and it is difficult  to  think that the Constitution when it introduced this word in  arti- cle  136 intended to limit its meaning to only those  tribu- nals which though not described as Courts strictly speaking, were  discharging  the same or analogous functions  as  were being discharged by Courts.       For  the reasons given above I am of the opinion  that the  word  "tribunal"  in article 136 has  to  be  construed liberally  and  not in any narrow sense  and  an  Industrial Tribunal  inasmuch as it discharges functions of a  judicial nature in accordance with law comes within the ambit of  the article  and from its determination an application for  spe- cial leave is competent.      The  question now to determine is whether the  exercise of  overriding powers of this Court can be justified on  any ground  whatsoever  in the present case. As I  have  already said, exceptional and extraordinary powers of this character can  only be justifiably used where there has been  a  grave miscarriage of justice or where the procedure adopted by the Tribunal  is  such that it offends against  all  notions  of legal procedure.      Dr. Bakshi Tek Chand for the petitioner-bank urged four grounds  justifying exercise of the special jurisdiction  of this Court.  Firstly, he contended that the word "victimiza- tion" used in clause 18 of the reference had been interpret- ed  in  such a manner by the Tribunal that  it  had  usurped



jurisdiction to decide disputes which were never referred to it.   In my view this is not a matter which can justify  the exercise of the powers under article 136. This Court is  not a  mere  Court of error.  The word "victimization"  has  not been  defined in the statute and is not in any sense a  term of  law  or a term of art. It is an  ordinary  English  word which  means that a certain person has become a  victim,  in other  words, that he has been unjustly dealt with.  It  was argued  that  the  word has acquired a  special  meaning  in regard  to  industrial disputes and connotes  a  person  who becomes  a victim of the employer’s wrath by reason  of  his trade union activities and that the word cannot relate to  a person  who has been merely unjustly dismissed.  Be that  as it may. 498 The  determination of the Tribunal has not  been  materially affected  by  this interpretation of the word to  any  large extent and that being so, it does not call for the  exercise of the special power.     The second ground urged was that the Tribunal has  erred in  ordering reinstatement of persons who were guilty of  an illegal strike.  It was contended that section 23 (b) of the Act has been wrongly construed by it and as a result of this misconstruction  persons who were guilty of a wrong and  who could  not  have been reinstated have  been  reinstated.  In brief,  the  argument was that under section  23(b)  when  a matter  has  been referred to a tribunal in  respect  of  an earlier  strike,  any  strike during the  pendency  of  that dispute  is  an illegal strike and that  was  the  situation here. The employees of the bank had struck work in December, 1948.   That  dispute  had been referred  to  an  Industrial Tribunal.   It was during the pendency of that dispute  that another strike took place which led to the dismissal of  the employees who have now been reinstated by the present award. The  Calcutta High Court has held that a strike  during  the pendency  of the period of truce and during the pendency  of an  earlier dispute before a tribunal is illegal even if  it is brought about as a result of fresh and new demands  which are not covered by the earlier dispute.  One of the  members of the Tribunal thought that the decision laid down the  law correctly  on the point, but the other member  thought  that the  decision was erroneous. Both of them,  however,  agreed that whether the strike was legal or illegal that point  did not  in any way affect the question that they had to  decide under  issue 18.  The consequences of an illegal strike  are laid  down  in the Act and certain  penalties  are  provided therein.   The  Act nowhere states that  persons  guilty  of illegal  strike  cannot be reinstated.  Be that as  it  may. The reference to the Tribunal was made by the Government  in respect of an illegal. strike and the Tribunal was bound  to give  its decision on the reference. Item 18 of schedule  II clearly empowers the tribunal to deal with cases of victimi- zation as a result of the third strike which the  petitioner described as illegal.  The Tribunal may be 499 wrong in the view they have taken but it seems to me this is again  not  a question of that vital character  which  would justify the grant of special leave under article 136.     The next question raised by the learned counsel that the award  of the Tribunal is based on no  evidence  whatsoever. This  contention  requires  serious  consideration.  I  have examined the proceedings of the Tribunal and it appears that all’  it  did was that as required by rule 17 at  the  first sitting  it  called upon the parties to state  their  cases. Mr. Parwana on behalf of the employees stated their  respec-



tive cases and Mr. Ved Vyas who represented the bank  stated the  bank’s  case and after the cases had  been  stated  the proceedings terminated and both parties addressed  arguments and  the Tribunal proceeded to give its award.  Whether  the charge  of victimization in individual cases was  proved  or not  depended  on  proof of certain facts which  had  to  be established  by evidence. The onus of proving  victimization clearly rested on the-employees.  No evidence whatsoever was led  on  their  behalf.  The statement of the  case  by  Mr. Parwana was not on oath. There was no examination or  cross- examination  of  Mr. Parwana.  No affidavit  supporting  the facts  stated  by  Mr. Parwana was filed by him  or  by  any employee.  Mr.  Parwana produced an abstract of  the  corre- spondence but the original correspondence was not  produced. The  bank disputed the facts stated by Mr. Parwana by  means of a lengthy affidavit. It seems no reference was made  even to this affidavit by the Tribunal. No counter affidavit  was filed in reply to the facts stated in this ’affidavit.   The bank wanted to call some evidence. Particular reference  was made in respect of a scurrilous letter issued by one Bhatta- charya  on behalf of the employees and distributed by  them, which  it  is alleged considerably shook the credit  of  the bank.   This opportunity was denied to it. It was  contended before  us that the bank wanted to lead evidence on  certain matters  and  that the opportunity to  lead it  was  denied. There  is nothing on the record to support this  contention. The result therefore is that the facts on the basis of which allegations of victimization have been 64 500 made  are neither supported by an affidavit nor by any  evi- dence and the award is based on no evidence whatsoever.  The Act  as  well  as the rules framed under  it  contemplate  a proper  hearing, discovery and inspection of  documents  and production  of  evidence, etc. None of  this  procedure  was followed  by the Tribunal.  It is difficult to see  on  what material  the Tribunal has given its award as there is  none existing on the present record and the respondents’  counsel could  not  point  out to any such material.   At  one  time during  the argument I was inclined to think  that  possibly both  parties by agreement consented to treat the  statement of case as evidence in the case and did not wish to  produce any other evidence, but the affidavit filed on behalf of the bank disputes all the facts stated by Mr. Parwana. The  only evidence  on the record is the bank’s affidavit and  if  the facts  contained  in the affidavit are  accepted,  then  the determination  made by the Tribunal cannot stand.  It  seems to  me therefore that the procedure adopted by the  Tribunal was against all principles of natural justice and the  award is  thereby  vitiated and should be set aside.   It  happens that when the safeguard of an appeal is not provided by  law the tendency sometimes is to act in an arbitrary manner like a  benevolent  despot.  Benevolent  despotism,  however,  is foreign  to a democratic Constitution.  The members  of  the Tribunal  seem to have thought that having heard the  state- ment  of  the cases of the parties they could proceed  to  a judgment on their own view of its right or wrong unaided  by any  material.  That kind of procedure to my mind is  unwar- ranted by the statute and is foreign to a democratic Consti- tution.  In these circumstances it is the compelling duty of this Court to exercise its extraordinary powers and to quash such an award.     The last contention raised by Bakshi Tek Chand was  that though a Tribunal consisting of three persons was  appointed to adjudicate on the dispute, the award has only been signed



by  two of them.  Reference in this connection was  made  to section 16 of the Act which says that the award of a  Tribu- nal  shall  be  in writing and shall be signed  by  all  the members of the 501 Tribunal and that nothing in the section shall be deemed  to prevent  any member of the Tribunal from recording a  minute of dissent.  The provisions of the section are mandatory and have  not been complied with.  It is common ground that  the case  was  stated by the parties at a sitting when  all  the members of the Tribunal were present and the arguments  were heard  by all of them. No sitting took place  subsequent  to this  which would have necessitated the carrying on of  pro- ceedings  by two members of the Tribunal by a  quorum.  When the  matter  has been heard by all the  three  members,  the award  should have been given by all of-them. Therefore  the award given by two of them is not the award of the  Tribunal constituted by the Government. It is therefore vitiated  and has to be quashed.  Reference in this connection was made to section 8 of the Act which reads as follows :--     "If  the services of the chairman of a Board or  of  the chairman or other member of a Court or Tribunal cease to  be available  at any time the appropriate Government shall,  in the  case  of a chairman, and may in the case of  any  other member,  appoint  another  independent person  to  fill  the vacancy,  and the proceedings shall be continued before  the Board, Court or Tribunal so reconstituted."     The  Tribunal was never reconstituted by the  Government by  any notification. Under section 7 a Tribunal has  to  be constituted in accordance with the provisions of the Act  by the Government. The Government having constituted a Tribunal of  three persons it had power under section 8 to  reconsti- tute it but did not exercise that power.  The result  there- fore is that the Tribunal as originally constituted was  not the  Tribunal which gave the award in this reference.   Only two  members have given the award.  It was said that one  of the  members ceased to be available and the  Government  was not bound to fill up that vacancy.  There is no material  on the  record to prove whether any member  became  unavailable and  if so, when.  But even if a member becomes  unavailable and  the Government does not choose to fill up the  vacancy, still  the  Government has to reconstitute the  Tribunal  by saying that 502 two members will now constitute the Tribunal.  An  affidavit with  two telegrams annexed was filed before  "us on  behalf of  the respondents which disclosed that Mr.  Chandrasekhara Aiyar who was one of the members of the Tribunal, in  Novem- ber, 1949, was appointed a member of the Boundary Commission in Bengal and that the other two members sent a telegram  to the  Labour Ministry asking it to fill up the vacancy or  to reconstitute the Tribunal. The advice given by the  Ministry was  that they could proceed as they were and that the  Gov- ernment  would later on, if necessary, fill up the  vacancy. We  are not concerned whether the advice given was right  or wrong.  But  the fact remains that the  Tribunal  was  never reconstituted and it was not denied that  Mr. Chandrasekhara Aiyar  is  now sitting in the same  Tribunal  without  being again  nominated to it and the Tribunal is hearing the  same reference under the other issues referred to it.   Moreover, I  do not see why after having heard the reference he  could not  give the award even if he was in Calcutta or  sign  the award  given  by the other two members.  The idea  of  three persons hearing a case and two of them deciding it is repug- nant to all notions of fairness.  It may well have been that



the  opinion of the third may have influenced the other  two or  the decision arrived at may have been  quite  different. It so happened in this case that two members of the Tribunal differed on an important question of law but somehow adjust- ed  their  differences  and gave  a  unanimous  award.   The presence  of  the third in such a situation  may  have  very vitally affected the result.  After a good deal of thought I feel  that  it  would be most dangerous for  this  Court  to condone  proceedings  of  this  character.   If  exceptional powers are not exercised even when a body legally constitut- ed  under  the statute does not function  according  to  the statute, then they defeat the very purpose of the  Constitu- tion.      Reference  in this connection may be made to the  deci- sion  of their Lordships of the Privy Council in  Fakira  v. King Emperor (1).  In that case section 377 (1) A.I.R. 1937 P.O. 119. 503 of  the  Code of Criminal Procedure as modified and  as  ap- plicable to Hyderabad stood as follows :--     "In  every  case so submitted, the confirmation  of  the sentence  or  order passed by the Court of the  Resident  at Hyderabad  shall,  when such Court consists of two  or  more Judges, be made, passed and signed by at least two of them."     In  Fakira’s  case the order of  confirmation  was  only made, passed and signed by one of them, though the Court  of the  Resident consisted of two Judges. Their Lordships  held that  the peremptory provisions of section 377 had not  been complied  with  and that the sentence passed  had  not  been validly confirmed.  The appeal was allowed and the case  was remitted  to the Court of the Resident.  The  provisions  of section  18  of the Industrial Disputes Act are  also  of  a peremptory  nature.   Reference may also be made to  a  case arising  under  the Bar Councils Act reported in  In  re  An Advocate, Madras(1), where one member of the tribunal  under that Act had died and had not signed the report. It was held that  the tribunal ceased to be properly   constituted   and that  the  report  could  not  be considered.     For the reasons given above I would quash this award and direct  that the Tribunal which is still functioning  should readjudge item 18 of the reference and then submit its award on  this point to Government. The employees cannot  be  held responsible  for  the  method of procedure  adopted  by  two members of the Tribunal.  Each party will have to bear their own costs in this Court. The appeal is allowed to the extent indicated above.     MUKHERJEA  J.--This appeal, which has come up before  us on  special leave, is directed against an award made by  the All  India Industrial Tribunal, dated the 19th  of  January, 1950.   The Tribunal was constituted by the Central  Govern- ment  under section 7 of the Industrial Disputes Act  and  a large number of disputes   (1) A.I.R. 1942 Mad. 267. 504 between several Banking companies and their emiployees  were referred  to  it for adjudication.   Amongst  these  Banking companies   were  the Bharat Bank  Limited,  the  appellants before  us, and the disputes between them and their  employ- ees, who are respondents in this appeal, related inter  alia to a number of cases of retrenchment and victimization which the   latter alleged against the former.  The Tribunal  held its  enquiry  in Delhi in respect to the  cases  which  were connected  with the Delhi Branch of the appellants and as  a result of the same, made their award on 19th January,  1950, holding that 26 persons, who were employees under the appel-



lants, were improperly dismissed by the latter and should be reinstated.   Further  directions were given  in  the  award regarding  the salaries and allowances that were to be  paid to  the dismissed employees.  This award was declared to  be binding in terms of the provisions of sections 15 and 19  of the  Industrial  Disputes Act by the Central  Government  on 30th  of  January, 1950, and it was directed  to  remain  in operation  for  a period of one year.  It  is  against  this award that the present appeal has been preferred.     On  behalf  of  the Indian Union which  appeared  as  an intervener in this appeal, as also on behalf of the respond- ents,  a  preliminary objection was  taken  challenging  the competency  of the appeal.  The contention put   forward  by Sir  Alladi Krishnaswami Aiyar, who appeared for the  inter- vener,  in  substance,  is that article 136  of  the  Indian Constitution,  under which special leave was prayed for  and obtained  by the appellants in this case, does  not  contem- plate or include within its scope an appeal against an award of  an  Industrial Tribunal which is not  vested  with,  and cannot exercise, judicial powers, and the decision of  which cannot,  therefore, rank as a judicial  determination.   The Industrial   Tribunal,  it  is said,  is  an  administrative body  exercising  quasi-judicial functions  and  this  Court cannot be called upon to exercise the powers of an appellate Court  in  respect to the decision of a  tribunal  which  is really a part of the administrative machinery of the Govern- ment. 505      In  reply to this objection, it has been urged  by  Sir Tek Chand  that the Tribunal constitutedunder the Industrial Disputes Act is really and in substance, a Court or judicial tribunal  which is invested with the power and authority  to exercise judicial functions; and in any event, the  language of article 136 of the Constitution is wide enough to include an  appeal from the award or determination of any  tribunal, be it judicial or not.     There  are two questions which require consideration  on this preliminary point.  The first is, whether the award  or decision  of  an Industrial Tribunal constituted  under  the Industrial Disputes Act is a judicial decision in the proper sense  of  the expression or is it the pronouncement  of  an administrative  or  quasi-judicial body which  may  exercise some of the functions of a Court of law but is really not so ?  The other question turns upon the construction to be  put upon  article  136 of the Constitution particularly  on  the meaning to be given to the words ’tribunal’ and  ’determina- tion’  occurring  therein; and the question is  whether  the language is wide enough to include an adjudication or  award of an Industrial Tribunal.     As regards the first question, it is to be noticed  that owing to the intricate and complex system of Government that exists  in a modern State and the vast expansion  of  social legislation  of all sorts that have taken place  in  England and  in other countries including our own, within  the  last few decades, the so-called administrative and quasi-judicial tribunals have come to be a permanent feature of our  social and  political system. They function as adjudicating  bodies in  disputes  concerning  a large number  of  economic  and. social  affairs.  In a sense they  are  governmental  bodies appertaining to the executive and not to the judicial branch of the State, though in various matters they are armed  with judicial  powers analogous to those normally carried out  by Courts  of  law.   The question is, what are  the  tests  or distinguishing features, if any, which distinguish an admin- istrative tribunal from a Court of law. Once we are able  to



formulate these tests, we would be 506 in  a position to determine whether a  Tribunal  functioning under  the Industrial Disputes Act is or is not  a  judicial tribunal properly so called.     Whether a particular function or activity is judicial or not is often a difficult question to decide.  The point  was elaborately  dealt  with by Lord Sankey  who  delivered  the judgment  of the Privy Council in Shell Co. of Australia  v. Federal Commissioner of Taxation (1). The question raised in that case was whether the Board of Review, which was set  up in 1925 under the Commonwealth Income Tax legislation, was a Court  exercising judicial powers of the Commonwealth ?  The High Court of Australia decided by a majority that it was an administrative and not a judicial tribunal and this majority judgment was affirmed in appeal by the Privy Council.   Lord Sankey remarked in course of his judgment that "the  decided cases  show that there are Tribunals which possess  many  of the  trappings of a Court but which, nevertheless,  are  not Courts  in  the strict sense of exercising  judicial  power. Mere externals do not make a direction by an ad hoc tribunal to  an  administrative officer, an exercise by  a  Court  of judicial power."     The  actual  decision in the case rested on  the  ground that  the Board of Review could not be a judicial  tribunal, as its orders were not conclusive for any purpose  whatsoev- er.  The decision, it seems, has only a negative value.  The Lord Chancellor enumerated a series of negative propositions which stated inter alia that a tribunal is not necessarily a Court because two or more  contending parties appear  before it,  nor because it hears witnesses, or gives a final  deci- sion which affects the right of the parties.  What the  real or  positive  test  is, the Privy Council did  not  care  to formulate,  though the judgment quoted, with approval,  cer- tain observations of Griffith C.J. given in another  Austra- lian  case, namely, Huddart Parker & Co.  v.  Moorehead("’), which to some extent neutralised the effect of the  negative tests enumerated in the judgment. The observations of  Grif- fith C.J. are as follows :--  (1) [1931] A.C. 276.                    (2)  8 C.L.R.  330, at p. 357.    507     "I  am of opinion that the words ’judicial  power’...... mean the power which every sovereign authority must have  of necessity  to decide controversies between its subjects,  or between  itself and its subjcets, whether the rights  relate to  life,  liberty or property. The exercise of  this  power does not begin until some tribunal which has power to give a binding  and  authoritative  decision  (whether  subject  to appeal or not) is called upon to take action."     It  may be stated that the authority to hear and  decide on  evidence between a proposal and an opposition though  it is  one  of the most essential of judicial  powers,  may  be present is an administrative tribunal also.  In the majority of  cases,  administrative bodies are also  armed  with  the powers of a Court of Justice in summoning witnesses,  admin- istering oaths and punishing disobedience to its order  made for the purpose of effecting its enquiries (1).  As a matter of fact, it is usual to find that those features which  were at one time attached exclusively to activities carried on in a Court of law are being extended to committees, commissions or boards conducting enquiries under directions or  supervi- sion  of the Government.  The presence or absence  of  these features, therefore, does not furnish any conclusive test to determine  whether a particular body is a judicial  body  or



not.  In the observations of Griffith C.J. quoted above, the learned  Chief  Justice laid stress on the power to  make  a binding and authoritative decision as the essential  element in  the exercise of judicial power.  The exact  meaning  and implication of these expressions were the subject matter  of discussion in later Australian cases and it was held by  the majority of the Judges in Rola Co. (Australia) Pty.  Limited v. The Commonwealth (2), that t. hey do not simply mean that if an authority is given power to decide controverted  ques- tions  of fact and its determination is made binding on  the parties  to the controversy, it would be sufficient to  show that  judicial  power was entrusted to  such  authority.   A determination,  it  was pointed out, may be binding  on  the parties  (1) Vide W F. O’Connor v. Waldron [1935] A,C. 67 at p,  82. 69 C.L.R. 185. 508 in the same sense as a contract is binding on them. What  is necessary  is  that the determination by its own  force  and without the aid or instrumentality of any other authority or power must affect the rights and obligations of the parties; or  in other words, the decision itself irrespective of  the facts  decided, must create rights and  impose  obligations; and it should be enforceable as such under the ordinary  law of  the  land. This undoubtedly is one  of  the  fundamental tests  which  distinguishes a judicial body from  one  which exercises administrative or quasi-judicial functions.  Some- times the decision or report of the administrative  tribunal becomes  operative after it is accepted by the head  of  the department under which the tribunal conducted its  enquiries and  it  is  then enforced by some  sort  of  administrative process; or it might create rights between the parties which have  to be sued upon in the ordinary way in a Court of  law and it is only on the basis of a judgment or decree that  is obtained  in  such action that relief could be  had  by  the party. The essence of judicial determination is that nothing further  remains  to be done except the enforcement  of  the judgment, a step which is compelled automatically by the law of the land. The  other fundamental test which distinguishes  a  judicial from  a  quasi-judicial or administrative body is  that  the former  decides  controversies according to law,  while  the latter  is  not  bound strictly to follow the  law  for  its decision.  The investigation of facts on evidence adduced by the  parties  may be a common feature in both  judicial  and quasi-judicial tribunals, but the difference between the two lies in the fact that in a judicial proceeding the Judge has got  to apply to the facts found, the law of the land  which is fixed and  uniform.    The  quasi-judicial  tribunal   on the other hand gives its decision on the differences between the parties not in accordance with fixed rules of law but on principles  of administrative policy or convenience or  what appears  to  be just and proper in the  circumstances  of  a particular case. In other words, the process employed by  an administrative  tribunal  in coming to its decision  is  not what is known as ’judicial 509 process’  (x).  Sir Maurice Gwyer in his  deposition  before the Committee on Minister’s Powers appointed by the  English Parliament in 1929 stated that "a clear distinction is to be drawn  between  judicial  and  quasijudicial  powers."   The ’judicial  power’ was defined by the witness as a  power  to decide  a question of legal right in a dispute between  par- ties  involving either a finding of fact or the  application of a fixed rule or principle of law or involving both.  "The



quasi-judicial  power," he defined as meaning "the power  of giving decisions on questions of differences of an  adminis- trative and not justiciable character which cannot be deter- mined by reference to any fixed law or principle of law  but are matters of administrative discretion and judgment  "(2). In Cooper v. Wilson (3), Scott L.J. quoted with approval and adopted  as the basis of his judgment the following  passage from the report of the above committee:     "A  true judicial decision presupposes an existing  dis- pute  between  two or more parties, and then  involves  four requisites :--(1) The presentation (not necessarily  orally) of  their  case by the parties to the dispute;  (2)  if  the dispute  between them is a question of fact, the  ascertain- ment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument  by or  on  behalf of the parties on the evidence;  (3)  if  the dispute between them is a question of law, the submission of legal  argument  by the parties; and (4)  a  decision  which disposes of the whole matter by a finding upon the facts  in dispute  and  an application of the law of the land  to  the facts  so found, including where required a ruling upon  any disputed question of law.  A quasi-judicial decision equally presupposes an existing dispute between two or more  parties and  involves (1) and (2) but does not  necessarily  involve (3)  and  never involves (4).  The place of (4) is  in  fact taken  by administrative action, the character of  which  is determined by the Minister’s free choice." (1)  See Robson’s Justice and Administrative Law, p. 74. (2)  Vide Committee of Minister’s  Powers, Minutes of  Evd., Vol. II, pages 15-16 and also Robson’s Justice and  Adminis- trative Law, p. 319. (3) [1937] 2 K.B. 309. 510     In our opinion these statements correctly bring out  the distinction  between a judicial tribunal and an  administra- tive body  which exercises  quasi-judicial functions.  These being  the  essential  features which  distinguish  the  two classes of tribunals, we would have to ascertain with refer- ence to the provisions of the Industrial Disputes Act, which class or category of tribunals an Industrial Tribunal  comes under.     The object of the Industrial Disputes Act, as set out in the  preamble, is "to make provisions for investigation  and settlement  of  industrial disputes and  for  certain  other purposes  hereinafter  appearing."   The  word  "settlement" suggests  the  idea of establishing compromise  between  the interests of disputing parties.     There are three classes ’of authorities provided for  by the  Act  who are entrusted with the powers  and  duties  of investigation and settlement of industrial disputes.   First of all, there are conciliation officers or Boards of Concil- iation, whose duties mainly are to induce parties to come to a fair and amicable settlement amongst themselves.   Second- ly,  there  are Courts of Enquiry and though they  are’  de- scribed as Courts, their duties end with investigation  into the  matters referred to them and submitting reports  there- upon  to  the  appropriate Government.   Lastly,  there  are Industrial  Tribunals  composed of independent  persons  who either  are or had been Judges of a High Court  or  District Judges  or  are  qualified for  appointment  as  High  Court Judges.    It  will be seen  from the descriptions given above  that the Board of   Conciliation or Court of Enquiry  constituted under   the Industrial Disputes Act could, on no account, be regarded as judicial tribunals.  To enable them to  investi-



gate  facts  they are however armed with certain  powers  of compelling  attendance of witnesses and production of  docu- ments  etc.  These provisions are to be found in section  11 of the Act. The significant thing to note is, that there  is no  distinction  made in this respect  between  Conciliation Boards and Courts of Enquiry on the One hand and  Industrial Tribunals on the other. The same powers are conferred 511     the three classes of authorities without any distinction whatsoever  and sub-section (3) of section 11  further  lays down that any enquiry or investigation by a Board, Court  of Enquiry  or Tribunal shall be deemed to be a  judicial  pro- ceeding  within the meaning of sections 193 and 228  of  the Indian  Penal Code.  This means that proceedings  before  an Industrial  Tribunal  or for the matter of that  before  the other  two bodies also could be deemed to ’be judicial  pro- ceedings  only for certain specified purposes.  The  express provision  making the proceedings judicial  proceedings  for those  purposes only emphasises that they are  not  judicial proceedings otherwise.     Under section 15 (1), the Industrial Tribunal has got to submit  its  award to the appropriate  Government  and  sub- section (2) lays down that on receipt of such an award,  the appropriate Government shall by order in writing declare the award to be binding. A different provision has been made  in regard  to  cases where the Government itself figures  as  a party  to  the  dispute. In such cases,  if  the  Government considers it inexpedient on public grounds to give effect to the award either in whole or in part, it may, at the  earli- est opportunity, lay the award for consideration before  the Provincial  or Central Legislative Assembly as the case  may be  and  the  Legislative Assembly may.  by  its  resolution confirm,  modify or reject the award.  After the  resolution is  passed, the Government is to declare the award  so  con- firmed  or  modified to be binding  [see  sub-section  (3)]. Sub-section  (4) of section 15 expressly lays down  that  an award  declared to be binding under any two of the  previous sub-sections shall not be called into question in any manner whatsoever.   The  Government is not merely to  declare  the award binding but under section 19 (3), it has got to speci- fy the date when the award would come into force and also to fix  the  period during which it would remain  binding,  and this period shall not exceed one year.     It will be seen, therefore, that there is nothing in the Industrial Disputes Act from which it could be inferred that the Industrial Tribunal really functions as a Court exercis- ing judicial functions.  Regarding 512 the trappings or the external indicia of a Court, its i  position is almost the same as that of the Board of  Con- ciliation  or  Court  of Enquiry and Bakshi  Sir  Tek  Chand concedes that the latter are not judicial tribunals at  all. The  powers  of an Industrial Tribunal are  certainly  wider than those of the other bodies, but it has no power to  make a final pronouncement which would proprio vigore be  binding on,  and create rights and obligations between the  parties. It is for the appropriate Government to declare the award to be  binding and the part which the Government plays in  such matters  is not a mechanical part merely, for the award  can really become operative only when the date of its  commence- ment and the period of its duration are fixed, and it is for the Government and Government alone to. fix the same.   With regard  to  the other class of cases, where  the  Government itself is one of the parties to the dispute, the position is still  worse.  An award in such cases is always  subject  to



the contingency of being rejected or modified by the  legis- lature  before whom    it could be placed for  consideration at  the option of the Government. Where a  contingency  like this is attached to an award, it can never be regarded as  a final  or  binding  decision which is of the  essence  of  a judicial  proceeding.  The fact that in  cases  of  disputes between private employers and their workmen, the  Government has  to  accept the award as it is, makes no  difference  in principle.  Possibly, this rule was made in consideration of the  status  and training of the people who  constitute  the Tribunal, but nevertheless the determination cannot  acquire any  authority  or  force, so long      as  the  appropriate Government does not make the declaration and fix the time of its  operation as mentioned above.  In regard to  the  other class of awards, where the Government is one of the  disput- ing  parties,  the award on the face of it  is  neither  the final  nor the authoritative pronouncement on the matter  in dispute,  and  it  is always in the powers. of  one  of  the disputing  parties to subject it to further scrutiny at  the hands  of the legislature who can reject the whole award  or effect  such  changes in it as it  considers  proper.   This shows the real nature of the Tribunal and it is not and    513 could  not  be suggested that the Industrial Tribunal  is  a Tribunal which exercises judicial functions when the dispute is only between private employers and their workmen, and  it ceases  to be such when the employer is the  Government  it- self.     We would now examine the process by which an  Industrial Tribunal comes to its decisions and I have no hesitation  in holding that the process employed is not judicial process at all.  In settling the disputes between the employers and the workmen,  the  function of the Tribunal is not  confined  to administration  of justice in accordance with law.   It  can confer  rights and privileges on either party which it  con- siders reasonable and proper, though they may not be  within the terms of any existing agreement.   It has not merely  to interpret  or  give  effect to the  contractual  rights  and obligations  of the parties.  It can create new  rights  and obligations  between them which it  considers essential  for keeping industrial peace.  An industrial dispate as has been said  on many occasions is nothing but a trial  of  strength between  the  employers on the one hand  and  the  workmen’s organization  on the other and the Industrial  Tribunal  has got  to  arrive at some equitable arrangement  for  averting strikes  and lock-outs which impede production of goods  and the industrial development of the country.   The Tribunal is not bound by the rigid rules of law.  The process it employs is  rather  an extended form of the  process  of  collective bargaining and is more akin to administrative than to  judi- cial function.     In describing the true position of an Industrial  Tribu- nal  in dealing with labour disputes, this Court in  Western India  Automobile Association v.  Industrial Tribunal,  Bom- bay,  and  others(1)  quoted with approval  a  passage  from Ludwig  Teller’s well known work on the subject,  where  the learned  author  observes that "industrial  arbitration  may involve  the extension of ,existing agreement or the  making of  a new one or in general the creation of new  obligations or  modification of old ones, while  commercial  arbitration generally   (1) [1949] F.C.R. 32] at p. 345. 514 concerns itself with interpretation of existing  obligations and  disputes  relating to existing agreements."  The  views



expressed in  these observations were adopted in its entire- ty  by  this Court.  Our conclusion, therefore, is  that  an Industrial Tribunal formed under the Industrial Disputes Act is  not a judicial tribunal and its determination is  not  a judicial determination in the proper sense of these  expres- sions.     We  now  come  to the other question as  to  whether  an appeal  could be taken to this Court against an award of  an Industrial  Tribunal by special leave under article  136  of the  Constitution.  Article 136 is a part of Chapter  IV  of the Constitution which deals with the Union Judiciary.   The different  jurisdictions  of  the Supreme  Court  have  been prescribed  in a series of articles commencing from  article 131.   Article 131 defines the original jurisdiction of  the Supreme  Court. Article 132 deals with its appellate  powers in cases where substantial questions of law as to the inter- pretation  of the Constitution are involved.    Article  133 contains  the provision relating to appeals in  civil  cases from  judgments, decrees  and orders of the High  Courts;and article  134 makes provisions relating to criminal  appeals. Article  135  lays down that the Supreme  Court  shall  have jurisdiction  and  powers  with respect to  any  matter  not covered  by articles 133 and 134, if such  jurisdiction  and power  could have been exercised by the Federal Court  prior to the coming into force of the present Constitution.   Then comes article 136 which runs as follows:     "(1)  Notwithstanding  anything  in  this  Chapter,  the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court  or tribunal in the territory of India."     The  article is worded in the widest terms possible.  It vests  in  the Supreme Court a plenary jurisdiction  in  the matter  of entertaining and hearing appeals by  granting  of special leave against any kind of judgment, decree or  order made by any Court or tribunal in any  515 cause  or matter and the powers could be exercised in  spite of  and overriding the specific provisions for  appeal  con- tained in the previous articles.  The controversy so far  as the  present  case  is concerned mainly  centers  round  the interpretation to be put upon two  words, namely,  "determi- nation"  and "tribunal" used in the article.  Does the  word "tribunal" mean a judicial tribunal only and is the  expres- sion  "determination" restricted to what is known as  "judi- cial determination"?     Sir  Alladi’s contention is that in  interpreting  these words  we should follow the principle of  ejusdent  generis. "Determination,"  he  says,  must be taken  to  be  judicial determination  which is of the same nature as decree,  judg- ment, order or sentence; and "tribunal" associated with  the word" Court" could not but mean "judicial tribunal."     Bakshi  Sir Tek Chand on the other hand lays  stress  on the fact that the word "determination" was not in the origi- nal  draft  Constitution,  and it  was  subsequently  added, presumably with a view to widen the scope of article 136 and include  within  it,  the decisions  of  administrative  and quasi-judicial tribunals also. He points out that  according to  the definition given in section 2 (b) of the  Industrial Disputes  Act, "award" means a determination either  interim or final of an industrial dispute by an Industrial Tribunal.     There  is undoubtedly something to be said in favour  of both  these views.  The difficulty, in our  opinion,  arises from the fact that neither of these terms "determination" or "tribunal" has a fixed or definite connotation  in  ordinary



language.  The word "determination" means and signifies  the ending  of a controversy or litigation by the decision of  a Judge or Arbitrator.  It cannot be said that it is restrict- ed  exclusively  to  proceedings in  court.   Likewise,  the dictionary  meaning  of  the word "tribunal"  is  ’court  of justice’  or  ’seat of a Judge.’  By ’Judge’  we  mean  some authority  by  which contested matters are  decided  between rival  parties.  Here again, it is not possible to say  that the expression is applicable only to a 66 516 regular  court  of law.  If the tribunal is  a  full-fledged judicial  tribunal,  it is not disputed that  its  decisions would be proper subject-matter of appeal under article ,136  of  the Constitution.  The question  is  whether  this article  includes  within its scope  the  determinations  of quasi-judicial tribunals as well.     Our  view is that ordinarily we should not put  any  re- stricted  interpretation upon the plain words of an  article in the Constitution and thereby limit our powers of granting special  leave for appeals, which the Constitution for  best of  reasons did not choose to fetter or circumscribe in  any way.   At  the same time, we must admit that  some  sort  of restricted interpretation may be unavoidable in view of  the context  in which particular words appear; and  certain  re- strictions  may  be implicit in the very purpose  for  which article 136 has been framed.  Article 136 empowers us in our discretion to hear appeals from pronouncements of all  infe- rior  courts and tribunals.  With regard to law  courts,  no difficulty arises. As regards tribunals which are not courts in the proper sense of the expression, it may not be proper, in  our  opinion, to lay down a hard and fast rule  that  no appeals could, on any account, be allowed against determina- tions  of  such tribunals. There are numerous  varieties  of these adjudicating bodies, whose structures vary greatly  in character and composition and so do the powers and functions which  they  exercise.   The best thing to do  would  be  to examine each type of cases as it arises and if we find  that with regard to determinations emanating from certain  tribu- nals it is not possible for us to exercise fully and  effec- tively the powers of an appellate Court, such determinations must  be held to lie outside the purview of article  136  of the Constitution.     This  disability in the matter of exercising our  powers as  an  appellate Court might arise from the fact  that  the rules and principles by which we ordinarily judge the sound- ness  or otherwise of judicial decisions are not capable  of being  applied to the determinations of certain  administra- tive tribunals.  It might also arise from the fact that  the law under which the     517 tribunal  functions  prevents us from making  any  effective order which would be binding and operative of its own  force without  the intervention of some other power or  authority; or there may be some kind of contingency attached to it.     In our opinion, these difficulties do confront us in the entertaining or hearing of an appeal against the decision of an Industrial Tribunal.  In the first place, as we have said above, the determination of an Industrial Tribunal does  not become complete and binding unless and until it is  declared to be so by the appropriate Government.  Till the Government makes  such declaration, neither of the parties to the  dis- pute  can  have  any real reason for filing  an  appeal.  An appeal,  if it lies, could be filed after the  determination has  been  declared binding.  But in such cases, is  it  the



determination of the Tribunal merely which is challenged  by way of appeal or is it’ the determination by the Tribunal to which has been super-added a declaration by the Government ? The  decision  in the appeal would  undoubtedly  affect  not merely the decision of the Tribunal but that of the  Govern- ment  as well which is certainly not a tribunal  within  the meaning of article 136. Assuming again that the award is set aside  and we substitute our own determination in  place  of the award given by the Tribunal, will our award be  enforce- able  by  itself  or will it require a  declaration  by  the Government  to make it binding ? If Government is  itself  a party to the dispute, will it be open to Government to place our decision for consideration by the Legislative  Assembly? And will the Legislative Assembly be competent to reject  or modify  our award ? These problems arise because under  sec- tion  15 the award under the Act becomes binding  only  when the  Government  declares it to be so and  if  our  judgment takes  the place of the award of the Tribunal, all  the  in- firmities  that attach to the award must necessarily  attach to our judgment also.     The  other  difficulty is no less formidable.   As  said above,  the Tribunal is not bound to decide the disputes  by application  of the ordinary law of the land.  A  good  deal depends upon questions of policy 518 and public convenience.  It is not possible for us  to.judge the propriety of the decision by a reference to some  stand- ard or fixed rules and we think that the very policy of  the law  prevents us from interfering with the discretion  exer- cised by the Tribunal. Where  the direction is committed to any body or a  tribunal exercising  quasi-judicial functions which are not  lettered by ordinary rules of law, the tribunal should in the absense of any provision to the contrary be deemed to have the final authority in the exercise of that discretion.  We cannot sit in appeal over their decision and substitute our own discre- tion for theirs. ,Questions, however, may and do arise where such  quasi-judicial   body attempts to  usurp  jurisdiction which it does not possess.  It may assume jurisdiction under a  mistaken view of law or refuse to  exercise  jurisdiction properly by adoption of extraneous or irrelevant  considera- tions;or  there  may be cases where in its  proceedings  the tribunal violates the principles of natural justice.  In all such  cases the most proper and adequate remedy would be  by writs  of  certiorari or prohibition and  the  Court  having authority may direct that the decision of the body or tribu- nal might be brought up to be quashed for lack of  jurisdic- tion  or for mistake apparent on the face of it; and if  the proceedings  had  not  terminated at that time,  a  writ  of prohibition  may also be issued for preventing the  tribunal from  exceeding its jurisdiction. The issuing of such  writs would not be an exercise of appellate powers which means the rehearing of the case and passing of such judgment which  in the  opinion  of the appellate Court the  original  tribunal should  have made.  The object of these writs is  simply  to keep  the exercise of powers by these quasi-judicial  tribu- nals  within the limits of jurisdiction assigned to them  by law  and  torestrain  them from acting in  excess  of  their authority.  These principles are well settled and require no elucidation(1).  Our conclusion, therefore, is that  article 136 of the Constitution does not contemplate a determination given by the Industrial Tribunal.     (1)  Rex v. Electricity Commissioners [1924] 1 K.B. 171; Board of Education v. Rice [1911] A.C. 179. 519



   Even  assuming  for  argument’s sake that  we  have  got jurisdiction under article 136, the exercise of which  would depend  upon the circumstances of each case, in view of  the reasons  which we have set out above, this is not an  appeal which,  in our opinion, should be admitted even if  we  have the power to do so.     The  result is that the preliminary  objection  succeeds and the appeal fails and is dismissed with costs. PATANJALI SASTRI’ J.--I entirely agree with the judgment  just  now  delivered by Mukherjea J.  and  I  have nothing to add. Appeal dismissed.     Agent  for  the appellant: Ganpat Rai  for  Tanubhai  C. Desai. Agent for the respondents: R.R. Biswas. Agent for the Union of India: P.A. Mehta. 519